5960 49mesat1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 September 22, 2004 8 9:30 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5961 49mesat1 1 (Trial continuing) 2 (In open court; jury not present) 3 THE COURT: Good morning, all. Please be seated. 4 MS. BAKER: Your Honor, a couple of brief matters 5 relating to this morning's testimony. 6 We're going to begin by presenting the next telephone 7 call, which is a relatively short one; I believe it's about 8 seven pages. 9 After that I will ask to present a stipulation, which 10 is marked as Government Exhibit 1812. It's a stipulation that 11 authenticates additional telephone records, and then I'll be 12 offering those into evidence. 13 And then we will be calling two witnesses back to 14 back. The first is Mr. Stuart Sleppin of a calling card 15 company whose testimony will be very brief. And then the 16 second is Agent Sorrells, who will testify about the telephone 17 analysis which is reflected in Government Exhibits 1800A 18 through 1800U. And I wanted to raise a couple of logistical 19 points relating to Agent Sorrells' testimony. 20 The first is that the government asks the Court, and 21 the defendants have consented, that the Court may take judicial 22 notice of the time differences between New York and three other 23 locations, those being Cairo, Egypt; London, England; and 24 Rochester, Minnesota. 25 So I'd like to hand up to the Court a copy of a letter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5962 49mesat1 1 which we sent to defense counsel which set forth the proposed 2 text of the judicial notice to which all defendants have now 3 consented. The Court will see that part of the text is in 4 regular typeface and part is in bold. That was -- the bold was 5 simply to let defense counsel know of certain additional text 6 that we had been adding after sending out a prior version. 7 But for the Court's purpose, it -- there is no 8 distinction. The defendants have agreed to all of it. 9 THE COURT: OK. 10 MS. BAKER: The second point -- 11 THE COURT: I should give the instruction with respect 12 to judicial notice then, too. 13 MS. BAKER: Yes, your Honor. 14 THE COURT: OK. 15 MS. BAKER: And then the other matter is that while 16 Agent Sorrells is on the stand, the government would like at a 17 certain point to present the recorded call that is in evidence 18 as Government Exhibit 1269, which is an English language call 19 in which Mr. Sattar calls MCI to cancel his telephone service 20 with them. 21 The call is -- the resulting transcript, which is 22 Government Exhibit 1269X, is only a little over five pages, but 23 the call is closer to ten minutes or so, if it's played in its 24 entirety. And that's because Mr. Sattar is twice on hold for 25 various periods of time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5963 49mesat1 1 Early in the call he's on hold for something around 2 three minutes. And while he is on hold, a recording appears 3 periodically to ask you to continue holding, and Ms. Griffith 4 has now put that page of the transcript up on the screen. And 5 that's on page two of the transcript. And then later in the 6 call, as reflected on page three of the transcript, he's put 7 back on hold for something in excess of a minute. 8 When we play the call, we would ask, in order not to 9 just have the jury sitting there while hold music plays, that 10 we be permitted to fast-forward over those parts. I spoke with 11 defense counsel. Mr. Sattar's defense counsel agrees. 12 I spoke with counsel for the other two defendants, 13 although when I spoke to them I only mentioned the first 14 occasion of holding, but they agreed to that. I don't know 15 whether they want the jury to be told that we're going to 16 fast-forward through parts when he's on hold, but obviously the 17 transcript will reflect that he was placed on hold. 18 So we would ask the Court's permission to proceed that 19 way. And if the Court agrees, then when we reach the point 20 where he's put on hold, the playing of the recording will stop 21 for a couple of seconds, Ms. Griffith will move forward within 22 the recording and then the playing of the recording will 23 resume. 24 THE COURT: I have no problem telling the jury that 25 the parties have agreed that the recording will be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5964 49mesat1 1 fast-forwarded through the hold music. 2 MR. PAUL: That's our agreement, your Honor. That's 3 fine. 4 MR. BARKOW: Your Honor, two other brief things. 5 First is I think we're going to get to the July 2001 6 prison visit at some point today. And I just wanted to put on 7 the record which -- what I think is the understanding between 8 the parties, which is that the DVDs of that prison visit should 9 be in evidence, to the extent then the conversations are 10 contained in the agreed-upon transcripts, 1716X, 1717X, 1720X, 11 1721X and 1722X. 12 That's a similar procedure that we used with respect 13 to the other prison visits, and we have reached those 14 agreements since we -- since the DVDs were put into evidence. 15 We have reached agreement on what should be in those X 16 transcripts. 17 THE COURT: Well, you can announce that as a -- I 18 assume as a stipulation. 19 MR. BARKOW: I can do that. I don't recall that we 20 did do that in front of the jury with the other ones, and so I 21 didn't know if we should do that in front of the jury with 22 these. 23 THE COURT: I believe what you did before was you 24 offered it in evidence, to the extent that it's reflected in 25 the X transcripts, and there was some back-and-forth between SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5965 49mesat1 1 the government and defense counsel as to exactly how that would 2 be expressed in terms of to the extent it was reflected and the 3 like. So you should just -- 4 MR. BARKOW: Get the language straight and say it in 5 front of the jury before we start presenting the evidence? 6 THE COURT: Right. 7 MR. BARKOW: That was the first thing. 8 The second thing -- actually, the second related thing 9 is we're also going to be offering into evidence the X 10 transcripts at that time because they're not yet in evidence. 11 The second thing I wanted to mention was yesterday I 12 had mentioned that a witness was going to be coming in on 13 Thursday and the parties had -- the defendants had agreed that 14 if we were in the middle of the July 2001 visit, we could 15 interrupt it in order for him to testify. 16 There is also one other witness, Nevine Aziz, a 17 translator who is going out of town next week and needs to 18 testify about materials from the Yousry search -- from the 19 Sattar computer. And Mr. Morvillo conferred with counsel and 20 there's no objection to her also testifying, if we're in the 21 middle of the July 2001 visit. We just want to make the Court 22 aware of that. 23 THE COURT: All right. 24 MR. TIGAR: Your Honor, for clarification, I don't 25 recall discussing this with Mr. Morvillo. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5966 49mesat1 1 THE COURT: I'm sorry, the reporter can't get it down 2 so -- it's all right, Mr. Tigar. 3 So just take a moment, Mr. Morvillo. 4 MR. TIGAR: That's what I was going to ask, if I could 5 talk with Mr. Morvillo. 6 MS. BAKER: Your Honor, while that's going on, if I 7 might hand up to the Court in response to the Court's request 8 made yesterday morning, we have a copy of the superseding 9 indictment on a computer disk. 10 THE COURT: All right. Thank you. 11 MR. BARKOW: May I confer with Mr. Ruhnke on the other 12 matter, your Honor. 13 THE COURT: Yes. While the parties are conferring, I 14 have two additional -- or several additional items or requests. 15 I believe that my set of the government exhibits goes 16 up only to Government Exhibit 404. Putting aside the 17 transcripts, which are separate exhibit binders, and I realize 18 that I've been given exhibits and ruled on them at various 19 times, it would be useful to me to have a bound set of exhibits 20 in evidence after 404. Not the 3500 material, not the 21 transcripts; exhibits. 22 Second, I received Ms. Stewart's motion in limine this 23 morning with respect to one aspect of 9/11. Is the government 24 going to respond to that in writing or orally? 25 MR. DEMBER: Your Honor, I think we'll respond orally. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5967 49mesat1 1 THE COURT: OK. We can take that up at the end of the 2 day. 3 I've now received lots of materials on the Taha book. 4 And Mr. Sattar's counsel was going to give me a letter today, I 5 don't know if the government's going to be responding to that 6 letter or not. In going over the government letter, there was 7 one portion of the government letter which is not helpful to me 8 when it says that in substance the Taha book has been referred 9 to in the transcripts, or words to that effect. If you're 10 going to ask me to rely on something like that, you have to 11 point out to me what transcript you're referring to and where. 12 MR. BARKOW: Your Honor, I don't know if the -- the 13 defendants had not specifically raised any objections on the 14 grounds that I was making assertions about in the letter, so if 15 they do, I will go through and I can exhaustively demonstrate 16 every statement that I made in that letter. 17 But I don't think that they can contest most of those 18 things. So if those are raised in the responses, then I'll do 19 that. Otherwise, I think that we might be able to assume that 20 they're not challenging those particular assertions and are 21 going to focus their arguments -- their objections to the book 22 had not been on those grounds, to my recollection. 23 And so rather than filing a 25-page brief on this, I 24 thought that I would let the defendants, since they're the ones 25 objecting, raise a specific issue before I did such. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5968 49mesat1 1 THE COURT: Well, the defendants' response will at 2 least be lengthy because defendants ultimately include a 3 15-page summary of the book. So I'll wait and see, and you can 4 tell me whether you're going to respond in writing or orally. 5 MR. TIGAR: Your Honor, I would at least like to know 6 whether the government believes that any of those transcript 7 references constitute an adoption by anyone of any statement in 8 the book. I remember the references to the book, the number of 9 copies of one edition were seized from here, and so we had some 10 English police officers. And then other people talk about the 11 fact that a book is being published. Certainly the relevance 12 decision and eventually the 403 balancing decision would turn 13 to some extent on whether there are substantive references in 14 the transcript to that book, by whom and under what 15 circumstances. Because, of course, that then would help us, 16 Ms. Stewart's counsel, as we ask this question, you know, 17 Count 1, Count 2, Count 3 and so on. 18 MR. PAUL: Your Honor, we will have a letter to the 19 Court by the end of today. I think most of the issues that we 20 will be raising as a factor has not been an adoption made in 21 any of the transcripts or the evidence presented so far in this 22 trial with regard to Mr. Sattar -- will require specific 23 references that the government is raising where, in fact, they 24 claim that there had, in fact, been an adoption made by 25 Mr. Sattar. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5969 49mesat1 1 MR. BARKOW: Your Honor, and as I said in the letter, 2 that's only one of two theories that we put forth. The primary 3 theory is that this is a statement by Taha, and the evidence of 4 that is abundant. And if the issue is going to be focussed on 5 whether it was adopted by Mr. Sattar with respect to his 6 distribution of it, I'll certainly file something in response 7 to what I see from the defendants that sets that forth. 8 But I want to make clear, that's really our secondary 9 theory. The primary theory here is that this book is a 10 statement by Taha as a statement in furtherance of the 11 conspiracy and also as a solicitation by him. 12 MR. PAUL: We will respond to both of those issues, 13 your Honor. 14 THE COURT: OK. Thank you, Mr. Paul. All right. 15 MS. BAKER: Your Honor, just a follow-up question in 16 response to the Court's request for copies of the various 17 exhibits. 18 When the Court indicated that you already have the 19 transcripts, was your Honor including the transcripts of the 20 prison visits, or does your Honor require copies of those as 21 well? 22 THE COURT: No, I -- I've been following along with 23 the transcripts. 24 MR. TIGAR: Your Honor, Mr. Barkow wanted to talk to 25 me. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5970 49mesat1 1 Based on my conversation with Mr. Morvillo, I now 2 understand what that translator is about. We have no 3 objection. 4 May I speak with Mr. Barkow. 5 THE COURT: Yes. All right. Are we ready to bring in 6 the jury? 7 (Pause) 8 THE COURT: What transcript are we going to begin 9 with? 10 MR. BARKOW: 1242X, your Honor. 11 May Mr. Forkner step forward, your Honor. 12 THE COURT: Yes. 13 MR. TIGAR: Your Honor, I understand when Mr. Sorrells 14 comes on, the government wants to pass out individual copies of 15 that -- the series of exhibits. We would ask that a court 16 official be the one to pass them to the jurors and not a member 17 of the legal team. 18 THE COURT: Yes. That's fine. 19 MS. BAKER: Your Honor, may I give the set of copies 20 to someone, or shall I put them somewhere? 21 THE COURT: Will Mr. Sorrells be testifying before the 22 break? 23 MS. BAKER: Yes, I believe he will start before the 24 break. 25 THE COURT: If you could pass them up to my law clerk SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5971 49mesat1 1 and my law clerk will leave one on Mr. Fletcher's desk and 2 Mr. Fletcher can give them out to the jury. 3 By the way, I understand the jurors were delayed this 4 morning. There was a problem with the transportation or 5 something, which is why I came out somewhat later. 6 My copy of 1242X has a Post-it that says replacement. 7 Is this a new transcript? 8 MR. BARKOW: Your Honor, how many pages is the Court's 9 copy? 10 THE COURT: Seven. 11 MR. BARKOW: That's what ours are as well. They go to 12 the bottom, page seven. Just to make sure, we can pass up 13 another one of ours -- 14 THE COURT: That's all right. I wondered if all the 15 parties were on the same page. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5972 49mesat1 1 (In open court; jury present) 2 THE COURT: Please be seated, all. 3 Good morning, ladies and gentlemen. It's always nice 4 to see you. 5 All right. Mr. Morvillo. 6 MR. MORVILLO: Thank you, your Honor. 7 At this time, your Honor, the government requests 8 permission to read and display to the jury Government 9 Exhibit 1242X in evidence. 10 THE COURT: All right. 11 MR. MORVILLO: For the record, your Honor, Government 12 Exhibit 1242X is a telephone call on January 15th of 2001 at 13 2:43 p.m. between Ahmed Abdel Sattar and Rifa'i Ahmad Taha 14 Musa. 15 May Mr. Forkner read the attributions to Mr. Sattar. 16 THE COURT: Yes. 17 (At this point, Government Exhibit 1242X, in evidence, 18 was displayed and read to the jury) 19 MS. BAKER: Your Honor, may Mr. Forkner step down. 20 THE COURT: Yes. 21 MS. BAKER: Your Honor, at this time the government 22 offers into evidence a stipulation signed by counsel and the 23 parties which is marked as Government Exhibit 1813. And we 24 request permission -- I'm sorry, 1812, and we request 25 permission to display it and read it to the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5973 49mesat1 1 THE COURT: All right. 2 MS. BAKER: The parties hereby stipulate and agree 3 that: As to each of the telephone company records described in 4 paragraphs (a) through (f) below, each of the following facts 5 is true: 6 One, the records are true and accurate copies of 7 original records of the particular telephone company; two, the 8 telephone company makes and keeps this type of record in the 9 regular course of its business; three, it is the telephone 10 company's regular practice to make and keep this kind of 11 record; four, the entries in the record were made at the time 12 that the recorded event or transaction took place or within a 13 reasonable time after that; and, five, the people who made the 14 entries or reported the information in the record was under a 15 business duty to do so accurately. 16 (a) Government Exhibit 1803 is what the government 17 deems to be the relevant pages from Sprint PCS telephone bills 18 for cellular telephone number 917-676-4997, which is subscribed 19 to Yousef M. Odeh. 20 (b) Government Exhibit 1807 is a CD containing records 21 from MCI WorldCom for telephone number 718-442-3513, which is 22 subscribed to Ahmed Abdel Sattar, 249 Hooker Place, Apt 2E, 23 Floor 2, Staten Island, New York. 24 (c) Government Exhibits 1807A1 and 1807A2 are true and 25 accurate printouts of two MCI WorldCom telephone bills for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5974 49mesat1 1 telephone number 718-442-3513, which were printed from the CD 2 marked as Government Exhibit 1807. 3 (d) Government Exhibit 1807B is a true and accurate 4 printout of the MCI WorldCom local calling record for telephone 5 number 718-442-3513, which was printed from the CD marked as 6 Government Exhibit 1807. 7 (e) Government Exhibit 1808 is the subscriber record 8 from MCI WorldCom for telephone number 212-475-3232, which is 9 subscribed to Clark and Schilling, care of Abdeen M. Jabara, 36 10 East 12th Street, New York, New York. 11 (f) Government Exhibit 2707 is telephone bills from 12 One.Tel for telephone number 0171-624-6868, subscribed to 13 Yassir Al-Sirri, 102 Edinburgh House, 155 Maida Vale, London, 14 England. 15 And it's agreed to and stipulated and signed by all 16 parties and their counsel. 17 THE COURT: All right. 18 MS. BAKER: Your Honor, based on that stipulation the 19 government offers into evidence the telephone records that are 20 marked Government Exhibits 1803, 1807, 1807A1 and A2, 1807B, 21 1808 and 2707. 22 THE COURT: All right. Government Exhibits 1803, 23 1807, 1807A1 and A2, 1807B, 1808 and 2707 received in evidence. 24 (Government's Exhibits 1803, 1807, 1807A1 and A2, 25 1807B, 1808 and 2707 received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5975 49mesat1 1 MS. BAKER: Your Honor, the government calls Stuart 2 Sleppin. 3 THE COURT: All right. 4 STUART SLEPPIN, 4 5 called as a witness by the Government, 6 having been duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY MS. BAKER: 9 Q. Good morning, Mr. Sleppin. 10 A. Good morning. 11 Q. What do you do for a living? 12 A. I run a prepaid telephone card company. 13 Q. Let me ask you to keep your voice up because it's very 14 difficult to hear in this room. You own? 15 A. A prepaid phone card company. 16 THE COURT: If you pull your chair up a bit and speak 17 into the microphone. Pull your chair up and pull the 18 microphone towards you. 19 Thank you. Go ahead, please. 20 Q. What is the name of the company? 21 A. Globalrock Networks, Incorporated. 22 Q. And in case any of the jurors are not familiar, could you 23 describe briefly what a prepaid phone card or calling card is 24 and how it works. 25 A. It's a predetermined amount of phone time packaged on $5, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5976 49mesat1 Sleppin - direct 1 $10 and $20 increments. It contains an access number that 2 accesses our switches and a PIN number. So a customer buys a 3 phone card, they call the -- our access number. They're 4 prompted to enter their PIN number. They enter their PIN 5 number and then they're told how much money they have left on 6 that card and they can make a phone call to anywhere in the 7 world. 8 Q. Let me ask you to focus, please, on the time period from 9 September 25th of 2000 through November 2nd of 2000. 10 Was your company doing the same business that you just 11 described during that period of time? 12 A. Yes, we were. 13 Q. Do you recognize the telephone number 718-487-6300? 14 A. Yes, I do. 15 Q. Where do you recognize that telephone number from? 16 A. At that time it was one of our access numbers. 17 Q. In other words, as you just described, is that the number 18 that someone would call in to to then go on and place a call 19 using one of your calling cards? 20 A. That's correct. 21 Q. Now, did you receive a subpoena seeking certain records 22 from your company? 23 A. Yes, I did. 24 MS. BAKER: Your Honor, may I approach the witness. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5977 49mesat1 Sleppin - direct 1 Q. I've handed you a document that's marked for identification 2 Government Exhibit 1813. Do you recognize that as a copy of 3 the subpoena that was served on your company? 4 A. Yes, I do. 5 Q. And directing your attention to the second page, which is 6 headed rider, does this subpoena just generally seek 7 information for calls that were made using a calling card with 8 a particular PIN number? 9 A. Yes, it does. 10 Q. And did it seek records for the time period from at least 11 September 25, 2000, through on or about November 2, 2000? 12 A. Yes, it does. 13 Q. Was your company able to provide any records in response to 14 this subpoena? 15 A. No, it wasn't. 16 Q. Why not? 17 A. We don't have a database large enough to go back that many 18 years. We could only go back about 18 months. That's as far 19 as the records we keep. 20 MS. BAKER: Thank you. I have no further questions. 21 THE COURT: All right. Mr. Tigar? 22 MR. TIGAR: May I ask a question or two. 23 THE COURT: Yes. 24 - - - - - 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5978 49mesat1 Sleppin - direct 1 CROSS EXAMINATION 2 BY MR. TIGAR: 3 Q. Good morning, Mr. Sleppin. 4 A. Good morning. 5 Q. Before you got this subpoena that you've just been shown, 6 had anybody from the federal government ever come around to 7 your business and asked for the records related to these 8 particular calls that you've been asked about? 9 A. No. 10 MR. TIGAR: Thank you. No further questions. 11 THE COURT: All right. 12 MS. BAKER: Your Honor, I have no further questions. 13 THE COURT: All right. Mr. Sleppin, you're excused. 14 You may step down. 15 (Witness excused) 16 THE COURT: Ms. Baker? 17 MS. BAKER: Your Honor, the government calls Steven 18 Sorrells. 19 THE COURT: All right. 20 STEVEN SORRELLS, 20 21 called as a witness by the Government, 22 having been duly sworn, testified as follows: 23 DIRECT EXAMINATION 24 BY MS. BAKER: 25 Q. Who do you work for? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5979 49mesat1 Sorrells - direct 1 A. I work for the FBI. 2 Q. What is your position with the FBI? 3 A. I'm a Special Agent with the FBI. 4 Q. How long have you been an FBI Special Agent? 5 A. Approximately six years. 6 Q. To what part of the FBI are you assigned? 7 A. I work in the New York division assigned to the joint 8 terrorism task force. 9 Q. How long have you been assigned to the joint terrorism task 10 force in the New York office? 11 A. Approximately five-and-a-half years. 12 Q. As part of your duties with FBI have you assisted in 13 certain ways with the investigation and prosecution of this 14 case? 15 A. Yes, I have. 16 MS. BAKER: May I approach the witness? 17 THE COURT: Yes. 18 Q. Agent Sorrells, I'm showing you a set of documents that are 19 marked for identification as Government Exhibits 1800A through 20 1800U. Do you recognize those documents? 21 A. Yes, I do. 22 Q. Generally what are they? 23 A. This is a chart that I prepared that basically shows -- it 24 compares the information from the recorded audio or transcript 25 as compared to information derived from telephone records or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5980 49mesat1 Sorrells - direct 1 other records. 2 Q. And have you verified that those documents, Government 3 Exhibits 1800A through 1800U, accurately set forth the 4 information from the audio files that are in evidence and their 5 transcripts and telephone records and other exhibits that are 6 in evidence? 7 A. Yes, I have. 8 MS. BAKER: Your Honor, the government offers 9 Government Exhibits 1800A through 1800U. 10 THE COURT: All right. 11 MR. TIGAR: No objection. 12 THE COURT: Government Exhibits 1800A through 1800U 13 received in evidence. 14 (Government's Exhibits 1800A through 1800U received in 15 evidence) 16 MS. BAKER: Your Honor, the government would ask that 17 at this time copies of Government Exhibits 1800A through 1800U 18 be provided to the members of the jury. 19 THE COURT: All right. Mr. Fletcher will pass out the 20 copies. 21 By the way, ladies and gentlemen, 1800A through 1800U 22 are received in evidence. You have been given copies of those 23 exhibits to look at at the moment. When I earlier explained to 24 you in the course of the trial how an exhibit can be shown to 25 the jury, I explained to you that exhibits can't be shown to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5981 49mesat1 Sorrells - direct 1 the jury unless they're in evidence; and that once an exhibit 2 is in evidence, it can be shown to the jury in various ways: 3 It can be held up so that the jury can see it; it can be put up 4 on the screen; or copies can be made and passed out to the 5 jury; or the original of the exhibit can simply be passed among 6 the jurors so that each juror can look at it. 7 In this particular case copies have been given to you, 8 but after you have seen the exhibit, at an appropriate time you 9 will simply give these copies back. So, please, don't make any 10 notations on these copies. They're simply being given to you 11 so that you can see them, so that you can follow any testimony 12 and see the exhibits. But, please, don't make any marks on 13 them because they will be collected again. 14 And as I believe I've also told you and will tell you 15 in my final instructions, the jurors have the right to call 16 for, ask for, to see any exhibits in evidence in the course of 17 their deliberations. But you will not keep these or make marks 18 on them. These exhibits will be returned. Again, if you wish 19 to see any exhibits in the course of the case, as I'll tell 20 you, you have the right to ask for them in the course of your 21 deliberations. 22 OK. You may proceed. 23 MS. BAKER: Thank you, your Honor. 24 BY MS. BAKER: 25 Q. Agent Sorrells, how is this series of charts which are now SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5982 49mesat1 Sorrells - direct 1 in evidence as Government Exhibits 1800A through 1800U 2 organized as far as what is on which pages? 3 A. Basically it's organized with -- for instance, the 1800A, 4 the call's intercepted on telephone number 718-442-3513. So 5 all of the calls that were intercepted that I looked at and 6 prepared for this chart are all together. 7 Q. Now, starting with that telephone number that you've just 8 cited, 718-442-3513, to whom is that telephone number 9 subscribed, according to the telephone records? 10 A. This number is subscribed to by Ahmed Abdel Sattar. 11 Q. As far as the pages of Government Exhibits 1800A through 12 1800U, which pages through which government exhibit number 13 relate to that same telephone number, Mr. Sattar's telephone 14 number? 15 A. Beginning with 1800A it goes through consecutively until 16 1800R. 17 Q. And if you would continue on to the next page, please, 18 Government Exhibit 1800S. To what telephone does that page 19 relate? 20 A. It relates to telephone number 718-429-8539. 21 Q. To whom was that telephone subscribed? 22 A. It was subscribed to by Mohammed Yousry. 23 Q. Turning next, please, to Government Exhibit 1800T. What 24 telephone number does that page relate? 25 A. The number is 917-676-4997. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5983 49mesat1 Sorrells - direct 1 Q. To whom was that telephone number subscribed? 2 A. It was subscribed to by Yousef Odeh. 3 Q. And finally, the last page, Government Exhibit 1800U, to 4 what telephone number does that page relate? 5 A. The number is 507-282-1211. 6 Q. And for what person or location is that the telephone 7 number? 8 A. That's the Federal Medical Center in Rochester, Minnesota. 9 Q. Now, let me ask you some questions about the organization 10 of the chart, how it's arranged. 11 First, in each of the pages of these charts, what does 12 a single row represent? 13 A. A single row represents an audio file that was captured or 14 intercepted. And then each -- all the information going across 15 the row deals with that particular audio file. 16 Q. Now, is an audio file the same thing as an entire call? 17 A. Not necessarily. You may have a -- one call that's broken 18 into several audio files. 19 Q. Now, in these charts what does each column represent, just 20 at the most general level? 21 A. I'm sorry, what does each column represent? 22 Q. Yes. Without going into the column specifically, why are 23 things separated into different columns? 24 A. Just so that you could note different areas of information 25 from the recorded call and transcript or from the telephone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5984 49mesat1 Sorrells - direct 1 records. 2 Q. Let me ask you, please make sure you keep your voice up 3 because it can be difficult to hear in this room. 4 A. OK. 5 Q. And let me take you through the calls individually -- 6 THE COURT: Hold on. If you pull your chair in and 7 pull the microphone towards you so that you can speak into the 8 microphone. Thank you. 9 THE WITNESS: OK. 10 Q. Let me take you to the columns individually starting with 11 the left-handmost column, which is headed call GX number. 12 What information is set forth in that column for each 13 of the audio files? 14 A. In that column that's simply the government exhibit number; 15 for example, 1001 is the actual audio file that is on the DVD 16 presented in evidence. There's a corresponding piece of 17 evidence, the transcript 1001T, and then also there's a 18 excerpted transcript. For example, 1001X, that corresponds for 19 each government exhibit in that column. 20 Q. Moving on to the second column, which is headed call date. 21 What is the information in that column as to each audio file? 22 A. That's simply the date that the call was intercepted. 23 Q. And what is the source of the information in that second 24 column? 25 A. For the call date is both the transcript and the audio SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5985 49mesat1 Sorrells - direct 1 file, where the -- where the transcripts and the audio files 2 were admitted into evidence -- for the transcript and audio 3 files that were intercepted. 4 Q. Could you be more specific. Where within the audio file 5 does the date of the call -- 6 THE COURT: I'm sorry. Could the reporter read back 7 the last answer, please -- the last question and answer. 8 (Record read) 9 MS. BAKER: Your Honor, may I put that question again 10 in the hopes of getting a more clear and succinct answer. 11 THE COURT: Yes. 12 BY MS. BAKER: 13 Q. What was the source of the information that's set forth in 14 the second column of these charts? 15 A. The source was when you look at the audio file, in the 16 nonaudio information on each audio file, it lists -- near the 17 bottom of the file it lists the call date. 18 Q. And does that information also appear in the transcript for 19 each audio file? 20 A. Yes, it does. 21 Q. Moving on to the third column which is headed start time, 22 what is that information? 23 A. That's the time when each audio file began originating. 24 Q. Where does that information come from? 25 A. That information comes from -- also from the transcript. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5986 49mesat1 Sorrells - direct 1 Likewise, that information is on the nonaudio information on 2 each audio file. 3 THE COURT: And when you refer to the transcript, 4 you're referring to the transcript of the call rather than the 5 transcript of the session here in court as to which we also 6 keep the transcript? 7 THE WITNESS: Correct. I'm referring to the 8 transcript -- the verbatim transcript. For instance, for 1001, 9 the transcript of 1001T and 1001X. 10 THE COURT: All right. 11 BY MS. BAKER: 12 Q. Moving over to the fourth column which is headed 13 information from reported call and/or transcript, generally 14 what is in that column? 15 A. That's simply information from either looking at the 16 transcript that was prepared from the call, the verbatim 17 transcript, or listening to the audio of the call, the 18 information that was derived. 19 Q. Could you give some examples of the kinds of information 20 that you set forth in that fourth column. 21 A. Sure. They're examples such as whether it was an incoming 22 or outgoing call from looking at the text of the transcript. 23 If the -- from looking at the transcript, if a particular 24 telephone number was captured by the system as the contact ID, 25 that's listed; or if a telephone number is listed in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5987 49mesat1 Sorrells - direct 1 conversation, then I tried to note it in that column. 2 Q. Now, in your last answer when you said "system," were you 3 referring to whichever recording system made the recording of 4 the particular call? 5 A. Yes. 6 Q. Focussing still on that fourth column, in certain rows in 7 the fourth column there are telephone numbers set forth. If a 8 telephone number appears in the fourth column in a particular 9 row, where did that telephone number come from? 10 A. That number came from either the transcript or the 11 information in the audio. If it was listed as a contact ID, 12 that means that the system captured it and I read it on the 13 transcript and noted it. If the telephone number is listed, 14 was listed in the conversation, I tried to note that in the 15 column as well. 16 Q. When you say "in the conversation," could you just explain 17 a little more what you mean by that. 18 A. For example, if Mr. Sattar is talking to another individual 19 and they provide a telephone number during the discussion, then 20 I would try to note that. 21 Q. Now, also in the fourth column there are a few rows that 22 note the ending time of the particular audio file. If an 23 ending time appears in the fourth column in a particular row, 24 where did that information come from? 25 A. If an ending time is listed, I looked on the nonaudio SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5988 49mesat1 Sorrells - direct 1 information for an audio file, typically it comes at the end, 2 and noted the ending time. 3 Q. Was that only done in certain instances where that 4 information seemed particularly relevant? 5 A. Yes. 6 Q. Now, let me move you over to the right to the fifth column, 7 the one which is headed information from telephone records. 8 What does that column contain? 9 A. That is information that was derived from looking at 10 telephone records, and in certain instances other records 11 that -- from this case. 12 Q. And how did you go about locating information to set forth 13 in the fifth column of this chart? 14 A. I actually looked at the telephone records, either on disk 15 or CD or a physical hard copy. 16 Q. Now, the fifth column does not contain any dates for any of 17 the calls. Why is that? 18 A. If a -- for the fifth column or each respective row I 19 didn't list the date because you can follow across to the left 20 and the date is listed for each audio unit. For example, 21 Government Exhibit 1001, I didn't list the date in the fifth 22 column where it says tolls slash LUDs, L-U-D-S, not available. 23 That simply means that that particular call was listed at that 24 particular date. 25 Q. So in each instance were you looking at the telephone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5989 49mesat1 Sorrells - direct 1 records for the particular call dates set forth in the second 2 column? 3 A. Yes, I was. 4 Q. Now, if a telephone number appears in the fifth column in a 5 particular row, where did that telephone number come from? 6 A. If a telephone number appears, then that telephone number 7 came from some telephone record or other record. 8 Q. If a time of a call appears in the fifth column of a 9 particular row, where did that time information come from? 10 A. That time came from some telephone record. 11 Q. If the duration or length of a call appears in the fifth 12 column of a particular row, where did that information come 13 from? 14 A. If the duration is listed, then it came from some telephone 15 record. 16 Q. Were there some telephone records that you reviewed that 17 did not indicate the durations of the calls? 18 A. Yes. There are certain local records were called LUDs that 19 do not list the duration on the bill because of the type of 20 billing that's used. 21 Q. Now, generally speaking within the pages of a chart for any 22 particular telephone number -- so, for example, focussing on 23 the pages marked as Government Exhibits 1800A through 1800R, 24 which you've already stated all relate to Mr. Sattar's 25 telephone number -- in that fifth column, from what telephone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5990 49mesat1 Sorrells - direct 1 records did you get the information that appears in the fifth 2 column? 3 A. If it's from the chart listed with the 718-442-3513 number, 4 then I got the information from that telephone number. If 5 there are instances where I received information from another 6 number, then I listed on the chart in column five what number 7 or -- and telephone records it came from. 8 Q. In your last answer I believe you said at one point that 9 you got the information, quote, from that telephone number, 10 closed quote. Did you mean from the telephone records for that 11 number? 12 A. Yes, correct. 13 Q. And so where the information in the fifth column came from 14 the records for some other phone number, did you indicate that 15 specifically? 16 A. Yes, I did. 17 Q. Now, if a person's name appears in the fifth column of a 18 particular row, where did that information come from? 19 A. That means that that person was the subscriber for that 20 telephone number. 21 Q. And in a few instances did a name in the fifth column come 22 from some other exhibit or source of information? 23 A. Yes, it could be some other record. 24 Q. Now, before I ask you about any specific rows in the 25 charts, let me ask you about the color coding scheme that's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5991 49mesat1 Sorrells - direct 1 used in Government Exhibits 1800A through 1800U. 2 A. OK. 3 Q. What does it mean if the text in a particular row is in 4 red? 5 A. If the text is in red, that means that when comparing the 6 information from the recorded call and/or transcript, that 7 information was corroborated by the telephone record or other 8 record. 9 Q. And what does it mean if the text in a row is black? 10 A. The text or written data was put in black, that means 11 several things. Number one, that means it's an incoming call. 12 Number two, that means that, for instance, 1800A 13 through 1800R are Mr. Sattar's chart, related to Mr. Sattar's 14 call -- Mr. Sattar's number. Not only would it be an incoming 15 call, but it was -- put it in black if they're -- we did not 16 have records for the other number that was calling into 17 Mr. Sattar's number. 18 Although we did not have those records, a large 19 majority of those may have shown -- did show on Mr. Sattar's 20 records that there was -- there were no incoming calls -- I'm 21 sorry, there were no outgoing calls at the time that the 22 recorded call and transcript says that there was an incoming 23 call. 24 And then lastly, there are a few instances where I 25 noted in black where there may not have been information -- we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5992 49mesat1 Sorrells - direct 1 may not have received the records for a few portions for 2 Mr. Sattar's number as well. 3 Q. On some of the later pages of the chart there are some rows 4 where the text is blue. What does it mean if the text in a row 5 is blue? For example, if you look at Government Exhibit 1800L, 6 there is a row of -- second from the bottom of the page. 7 A. OK. If you look at 1800L, some text is listed in -- for 8 example, the text is listed in green if it's just information 9 that was derived from telephone records that note when service 10 may have stopped, the last call that they found on a toll or 11 LUD. For example, with Verizon, likewise if -- there may be a 12 notation in green where it was the first call that I noted on 13 MCI records. So that information does not -- it only came from 14 the toll, toll or telephone records. 15 Q. OK. So that applies to the rows that are in green, 16 correct? 17 A. Yes. 18 Q. So the green rows, if I'm understanding you correctly, do 19 not relate to specific recorded telephone calls, correct? 20 A. Correct. 21 Q. What about rows that are in blue, like the row which is 22 second from the bottom on the page marked 1800F? 23 A. The -- for example, 1800L, the items in blue, the text in 24 blue are outgoing calls where there were no toll records, 25 typically gaps in service where -- mainly between Verizon and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5993 49mesat1 Sorrells - direct 1 MCI. 2 Q. Now what I'd like to do is go back to the beginning of the 3 set of charts and ask you about some individual rows as 4 examples. So if you would turn back, please, to Government 5 Exhibit 1800A and look at the row for Government Exhibit 1254, 6 which is around the middle of the page. 7 If you would, as an example, just walk us through the 8 information set forth in that row and what it means. 9 A. OK. For Government Exhibit 1254, this was a call on 10 3/20/1999 at 12:57:09 p.m. From the text, the transcript it 11 was an outgoing call from Mr. Sattar to Yassir Al-Sirri, and 12 the contact number that was captured was 01144-171-624-6868. 13 Q. Let me pause you there for a moment. The information that 14 you recited up to that point, does that come from the audio 15 file itself or -- and/or the transcript of it? 16 A. Yes. 17 Q. And when you said in your last answer that the contact ID 18 was information captured, captured by what? 19 A. It was captured by the system used to intercept the call 20 and noted on the verbatim transcript. 21 Q. OK. Please continue across that row. 22 A. OK. And then the fifth column on that row shows that when 23 checking telephone numbers for Mr. Sattar's telephone, in this 24 instance tolls, they show a 26-minute outgoing call at 12:56 to 25 the same number in the UK, which is subscribed to by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5994 49mesat1 Sorrells - direct 1 Mr. Al-Sirri. 2 Q. And where does all that information come from? 3 A. That comes on -- that information is on -- meaning where is 4 the telephone? I'm sorry. 5 Q. No. What document or documents were the source of the 6 information that appears in that fifth column of that row? 7 A. The source was Mr. Sattar's telephone records. 8 Q. And what about the reference to Mr. Al-Sirri's name in 9 parentheses? 10 A. That information was -- Mr. Al-Sirri is listed as a 11 subscriber for that telephone number. 12 Q. And is that according to other telephone records? 13 A. Yes, it is. 14 Q. Now, let me show you a portion of a document that's already 15 in evidence as Government Exhibit 1801B. 16 MS. BAKER: Your Honor, may I display it using the 17 projector. 18 THE COURT: Yes, 1801B. 19 Q. Showing you first just the top of the first page so you can 20 see the marking of the document. And now I'm turning to a page 21 inside the document which says at the bottom page 354. 22 One line on that page is highlighted. Do you 23 recognize the information in that line? 24 A. Yes, I do. 25 Q. What is that information? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5995 49mesat1 Sorrells - direct 1 A. That information is from toll records. It shows that there 2 was a call on March 20th to the United Kingdom to the telephone 3 number listed. The call was at 12:56 p.m. and it was a 4 26-minute call at that time. 5 Q. And is that the information set forth in the fifth column 6 of the row for Government Exhibit 1254 on Government 7 Exhibit 1800A? 8 A. Yes, it is. 9 Q. Who put the highlighting on there? 10 A. I highlighted it. 11 Q. Did you do that as you went through all of the telephone 12 records and found calls that -- or records for calls that 13 related to the recordings in evidence in this case? 14 A. Yes, I did. 15 Q. Now, let me ask you to look also on Government 16 Exhibit 1800A at the row for the audio file Government 17 Exhibit 1253, which is the second row from the top. 18 Would you please take us through that row the way it 19 shows. 20 A. Government Exhibit 1253 was a call at 11/23/1998. The 21 start time was 11:28:06 a.m. from the transcript and recorded 22 call. It was an incoming call from Ms. Stewart to Sattar's 23 answering machine. Then checking Mr. Sattar's telephone -- I'm 24 sorry, checking Ms. Stewart's telephone records, it shows that 25 there was an outgoing call at 11:28 a.m. to Mr. Sattar's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5996 49mesat1 Sorrells - direct 1 telephone number, which is the 3513 number listed. 2 Q. Showing you the exhibit already in evidence, Government 3 Exhibit 1805, is the highlighted information on that exhibit 4 the telephone record information that you were just referring 5 to set forth in the fifth column of that row? 6 A. Yes, it is. 7 Q. Directing your attention now to the same page, Government 8 Exhibit 1800A, to the rows for Government Exhibits 1011 and 9 1012 near the bottom of the page, please explain what's 10 represented in those rows. 11 A. OK. This is -- for Government Exhibit 1011 this is a 12 call -- and 1012, it's a call on 3/4/1999. Government 13 Exhibit 1011 began at 6:20:59. From the text of the transcript 14 it's an outgoing call from Mr. Sattar to Al-Zayyat. The 15 contact ID captured is listed. And the recording ends as noted 16 in the text, the recording ends after you had call -- they 17 heard a call waiting beep. 18 Q. And what about the next row, Government Exhibit 1012? 19 A. 1012 is a different audio file but it's a continuation of 20 the same call. After the call waiting beep with the previous 21 government exhibit, Sattar receives an incoming call via call 22 waiting and then he makes an outgoing call to Mr. Al-Zayyat. 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5997 49MMSAT2 Sorrells - direct 1 Q. Does he make a new outgoing call or continue the same one? 2 A. Continues the outgoing call. 3 Q. What do the telephone records show as compared to those two 4 audio files? 5 A. The telephone long distance records or toll records showed 6 a 13-minute outgoing call originating at 6:21 p.m. to the 7 number that is listed, which is in Egypt. 8 Q. And does that telephone number that was called, according 9 to the telephone records, match the telephone number that was 10 captured by the recording system? 11 A. Yes, it does. 12 Q. Now, the wording used in the row for Government Exhibit 13 1012, which begins, continuation of call, is that standard 14 wording that you used throughout the chart whenever an audio 15 file was a continuation of the same call as the previous row? 16 A. Yes. 17 Q. Now, if you would turn, please, to the page marked 18 Government Exhibit 1800O. And if you would look, please, at 19 the row for the audio file that is Government Exhibit 1184 at 20 the bottom of that page. If you would, please, take us through 21 that row. 22 A. Government Exhibit 1184, it is a call that occurred on 23 10/5/2000 at 3:36:28 p.m. It was an incoming call from 24 Mr. Al-Sirri to Sattar and the toll records for Mr. Al-Sirri's 25 telephone number show an outgoing call at 20:36:38, which is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5998 49MMSAT2 Sorrells - direct 1 listed in United kingdom time to Mr. Sattar's number in the 2 United States. 3 Q. Now, you said that the time was 20:36:38 in UK time. What 4 does that convert to as far as a.m. or p.m.? 5 A. 3:36 p.m. 6 Q. I'm sorry? 7 A. 3:36 p.m. 8 Q. I'd like you to do the version still within UK time. 9 A. I'm sorry. That would be 8:36:38 p.m. 10 MS. BAKER: Your Honor, at this time the government 11 would ask the Court to take judicial notice, as requested this 12 morning. 13 THE COURT: Ladies and gentlemen, in the course of the 14 trial I have taken judicial notice of various facts and I will 15 take judicial notice of certain additional facts at this point. 16 In the year 2000, in Cairo, Egypt, daylight savings 17 time started on April 27, 2000 and ended on September 28, 2000. 18 In the year 2000, in New York, New York, daylight savings time 19 started on April 2, 2000 and ended on October 29, 2000. In the 20 year 2001, in Cairo, Egypt, daylight savings time started on 21 April 26, 2001 and ended on September 27, 2001. In the year 22 2001, in New York, New York, daylight savings time started on 23 April 1, 2001 and ended on October 28, 2001. 24 When daylight savings time or standard time is in 25 effect in both locations, the time in Cairo is seven hours SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5999 49MMSAT2 Sorrells - direct 1 later than it is in New York. That is, for example, if it is 1 2 a.m. in New York, it is 8 a.m. in Cairo. And if it is 10 p.m. 3 in New York, it is 5 a.m. the next day in Cairo. 4 When daylight savings time is in effect in Cairo but 5 not in New York, the time in Cairo is eight hours later than it 6 is in New York. When daylight savings time is in effect in New 7 York but not in Cairo, the time in Cairo is six hours later 8 than it is in New York. 9 In the year 2000, in London, England, daylight savings 10 time started on March 26, 2000 and ended on October 29, 2000. 11 In the year 2001, in London, daylight savings time started on 12 March 25, 2001 and ended on October 28, 2001. 13 When daylight savings time or standard time is in 14 effect in both locations, the time in London is five hours 15 later than it is in New York. That is, for example, if it is 1 16 a.m. in New York, it is 6 a.m. in London. And if it is 10 p.m. 17 in New York, it is 3 a.m. the next day in London. When 18 daylight savings time is in effect in London but not in New 19 York, the time in London is six hours later than it is in New 20 York. When daylight savings time is in effect in New York but 21 not in London, the time in London is four hours later than it 22 is in New York. 23 In the year 2000, in Rochester, Minnesota, daylight 24 savings time started on April 2, 2000 and ended on October 29, 25 2000. In the year 2001, in Rochester, daylight savings time SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6000 49MMSAT2 Sorrells - direct 1 started on April 1, 2001 and ended on October 28, 2001. At all 2 times the time in Rochester is one hour earlier than it is in 3 New York. 4 Ladies and gentlemen, that ends the facts as to which 5 I am taking judicial notice at this point. You will recall 6 that there is an instruction that I have given you with respect 7 to facts about which I take judicial notice. Just to remind 8 you about that instruction, I have taken judicial notice of 9 certain facts which I believe are not subject to reasonable 10 dispute. I have accepted these facts to be true even though no 11 evidence has been introduced proving them to be true. You may, 12 but are not required, to agree that these facts are true. The 13 weight and relevance of these facts, if you find them, are for 14 you, the jury, to determine. So you should apply that 15 instruction here and I will repeat the instruction again in my 16 final instructions. 17 BY MS. BAKER: 18 Q. Agent Sorrells, looking back at the row for Government 19 Exhibit 1184 at the bottom of the page which is in evidence as 20 Government Exhibit 1800O, the time which you just converted in 21 the UK of 8:36 p.m., is that the same time when it was 3:36 22 p.m. in New York? 23 A. Yes. 24 MS. BAKER: Your Honor, may I approach the witness? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6001 49MMSAT2 Sorrells - direct 1 Q. The information that appears in that fifth column of the 2 row for Government Exhibit 1184, from whose telephone records 3 did you get that information? 4 A. From Mr. Al-Sirri's telephone records. 5 Q. Looking at the document that I just placed in front of you 6 which is marked as Government Exhibit 2707H, do you recognize 7 2707H? 8 A. Yes, I do. 9 Q. What is it? 10 A. It is billing information and telephone records for 11 Mr. Al-Sirri. 12 Q. Is that a complete set of telephone records or something 13 else? 14 A. No, it is not. 15 Q. What is it? 16 A. It is just pertinent calls that show up in the chart that I 17 pulled out from the overall set of a complete set of records. 18 Q. And did you go through and mark the pertinent calls in 19 there some way? 20 A. Yes, I did. I highlighted them. 21 MS. BAKER: Your Honor, I offer Government Exhibit 22 2707H. 23 THE COURT: Government Exhibit 2707H received in 24 evidence. 25 (Government's Exhibit 2707H received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6002 49MMSAT2 Sorrells - direct 1 MS. BAKER: Your Honor, may I retrieve it from the 2 witness and display a portion of it to the jury? 3 THE COURT: Yes. 4 Q. Showing you one of the pages of Government Exhibit 2707H, 5 is the highlighted row the information which is set forth in 6 the fifth column of the row for Government Exhibit 1184 on 7 Government Exhibit 1800O? 8 A. Yes, it is. 9 Q. Directing your attention to the second column of the page 10 of Government Exhibit 2707H, the column which is headed date, 11 the date appears as 05/10/2000. Could you explain that? 12 A. Yes. That date is actually October 5, 2000. In many other 13 countries and in the UK they often list the day, month, and 14 then the year. 15 Q. Let me ask you now, please, to turn to the page of the 16 charts which is in evidence as Government Exhibit 1800C. If 17 you would look, please, at the row for Government Exhibit 1034, 18 which is near the bottom of the page. Would you please explain 19 to the jury the information set forth in that row. 20 A. This is a call that occurred on November 5, 1999 at 6:36:42 21 p.m. From the text, the audio file -- the text of the 22 transcript and the audio file, Mr. Yousry is already on the 23 line. Mr. Yousry and Mr. Sattar make an outgoing three-way 24 call to Ramsey Clark. After some discussion Mr. Yousry hangs 25 up and Mr. Sattar and Mr. Clark make an outgoing three-way call SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6003 49MMSAT2 Sorrells - direct 1 to Mr. Muhammad al-Shafi'i. 2 Q. How did that information compare to what you found in the 3 telephone records as set forth in the fifth column of that row? 4 A. From the telephone records that came from Mr. Sattar's 5 telephone number. In looking at the LUDs, they show an 6 outgoing call at 6:24 p.m. to Mr. Yousry's phone, which is the 7 8539 number. 8 Q. That call which began at 6:24 p.m., did that begin before 9 or after the start of the recording of the audio file which is 10 in evidence as Government Exhibit 1034? 11 A. Before. 12 Q. Please continue in the fifth column of that row. 13 A. In addition, the local records show a three-way call at 14 6:35 p.m. to Mr. Clark's telephone number, 212-989-6613. 15 Q. And to whom is that telephone number subscribed? 16 A. To Mr. Ramsey Clark. 17 Q. And was that call made before or after the start of the 18 recording which is in evidence as Government Exhibit 1034? 19 A. Before. 20 Q. Please continue. 21 A. Then a third call was made, a three-way call, again, at 22 6:35 p.m., to 212-475-3232, which is subscribed by Mr. Ramsey 23 Clark. 24 Q. Now, you indicated in that fifth column of that row that 25 those two calls are three-way calls. Is that information that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6004 49MMSAT2 Sorrells - direct 1 specifically was contained in the telephone record? 2 A. Yes, it was. 3 Q. Let me show you a portion of what is in evidence as 4 Government Exhibit 1800C. Showing you first the upper portion 5 of the front page so you can see the exhibit marking and then 6 turning to one of the internal pages which says at the bottom 7 page 280, if you would focus, please, on the highlighted 8 information on that page. How does that telephone record 9 indicate that the two calls to Mr. Clark's telephone numbers 10 were three-way calls? 11 A. If you look at the two calls, they are listed at 6:35 p.m. 12 Those two calls have slashes to the left side of the date and 13 that indicates that it was a three-way call. 14 THE COURT: Let me stop you for a moment. Did you say 15 that the exhibit that's on the screen is Government Exhibit 16 1800C? 17 MS. BAKER: If I did, I misspoke. It is 1801C. And 18 the 1800C is the page of the chart to which we are also 19 referring. 20 Q. Agent Sorrells, turning back to that page of the chart, 21 1800C, if you would please continue, there is one more piece of 22 information in the fifth column in that row for Government 23 Exhibit 1034. 24 A. In addition to the local -- the LUDs or the local records 25 show, if you look at the long distance records or the tolls for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6005 49MMSAT2 Sorrells - direct 1 Mr. Sattar's phone, they show a four minute outgoing call at 2 6:50 p.m. to the number listed, 044-171-837-3170. 3 Q. And then you've indicated by putting the name al-Shafi'i in 4 parenthesis that that telephone number is Mr. Al-Shafi'i's? 5 A. Yes. 6 Q. What was the source of that information linking that 7 telephone number to Mr. Al-Shafi'i? 8 A. That telephone number was attributed to Mr. Al-Shafi'i 9 because there is another transcript where Mr. Al-Shafi'i 10 provides that as his home telephone numbers. 11 Q. In other words, he states it in another conversation? 12 A. Yes, he does. 13 Q. Is that exhibit for that conversation one of the exhibit 14 numbers set forth in the sixth column of that same row? 15 A. Yes, I believe it is. 16 Q. Now, if you would turn, please, to the page of the chart in 17 evidence as Government Exhibit 1800F and look, please, at the 18 row for the call for the audio file in evidence as Government 19 Exhibit 1072, which is near the bottom of the page. 20 A. Okay. 21 Q. If you would, please, go through the information in that 22 row of the chart. 23 A. This shows a call on April 18, 2000 at 6:10:36 a.m. That 24 was an incoming call from Mr. Hamza to Mr. Sattar. During the 25 conversation Sattar provides telephone number 884-8051. After SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6006 49MMSAT2 Sorrells - direct 1 that, they make an outgoing three-way call to two other 2 individuals. 3 Q. And what did the telephone records show? 4 A. The telephone records show a 57-minute outgoing call at 5 6:13 a.m. to a number matching what was provided in the 6 conversation in Egypt. 7 Q. Now, as reflected in the fourth column of that row, the 8 transcript made clear that the outgoing call was a three-way 9 call, but in the fifth column of that row you've merely noted 10 an outgoing call. Why is that? 11 A. From looking at the long distance record, the toll records, 12 you can't tell whether it is a three-way call. 13 Q. In other words, that kind of information is just not 14 contained in those kind of records? 15 A. Correct. 16 Q. If you would turn next, please, to the next page, which is 17 in evidence as Government Exhibit 1800G. I'm sorry. Before 18 you do that, let me ask you about one other one? 19 THE COURT: Whenever there is a convenient time, we 20 could break -- 21 MS. BAKER: Actually, now would be fine, your Honor. 22 THE COURT: Ladies and gentlemen, we will take our 23 mid-morning break. 24 Please leave the exhibits on your chair, and please 25 remember my continuing instructions not to talk about the case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6007 49MMSAT2 Sorrells - direct 1 and remember to keep an open mind. 2 All rise, please. Please follow Mr. Fletcher to the 3 jury room. 4 (Jury not present) 5 THE COURT: See you shortly. 6 (Recess) 7 MR. TIGAR: Your Honor, when this witness is tendered 8 to us for cross-examination I think Mr. Paul wanted to ask some 9 questions and then I wanted to ask some questions. I would 10 prefer to work with the Elmo to show pieces of the exhibits 11 rather than have the jurors have the exhibits. So I would 12 respectfully request that the exhibits be collected from the 13 jurors before I begin my cross-examination. I don't know what 14 Mr. Paul's position would be. 15 MR. PAUL: I only have a few questions, your Honor, 16 and I'm not using the Elmo. 17 THE COURT: You want the jurors to have the exhibits? 18 MR. PAUL: I think there will be reference to the 19 exhibits, so they should hold them until Mr. Tigar is prepared 20 to go and at that time they should be collected. 21 THE COURT: Mr. Ruhnke? 22 MR. RUHNKE: I am not going to have any questions. 23 THE COURT: Are we ready to bring in the jury? 24 Okay. 25 Ms. Baker, if you want the exhibits passed out before SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6008 49MMSAT2 Sorrells - direct 1 any redirect, you're welcome to just ask me. 2 MS. BAKER: Your Honor, I will have to see what 3 happens in the cross-examination, but even if I don't ask to 4 have them passed out for redirect, as I mentioned to the Court 5 the other day, I am going to ask that at the end of all 6 questioning that the jurors be given some time to read through 7 the exhibits. 8 THE COURT: That's fine. 9 MR. TIGAR: Your Honor, if that is going to be done, 10 then we would request an instruction that they are not to 11 discuss them amongst themselves. This is just time for them 12 individually to read them. And I trust that that will be done 13 in the jury box. 14 THE COURT: Oh, yes. 15 (Jury present) 16 THE COURT: Ms. Baker, you may proceed. 17 MS. BAKER: Thank you, your Honor. 18 BY MS. BAKER: 19 Q. Agent Sorrells, if you would please turn next -- 20 THE COURT: I'm sorry. My fault. 21 Mr. Fletcher. 22 THE DEPUTY CLERK: Let me remind Agent Sorrells that 23 he is still under oath. 24 THE WITNESS: Yes. 25 THE COURT: Ms. Baker, you may proceed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6009 49MMSAT2 Sorrells - direct 1 MS. BAKER: Thank you. 2 BY MS. BAKER: 3 Q. If you would please turn next to the page of chart in 4 evidence as Government Exhibit 1800O and look, please, at the 5 row for the audio file in evidence as Government Exhibit 1182. 6 Would you please take us through the information relating to 7 that audio file. 8 A. This is an audio file that was -- call that was captured on 9 10/4/2000 at 4:19:06 p.m. It was an outgoing call using a 10 calling card from Mr. Sattar to Mr. Al-Sirri and the contact ID 11 number was 487-6300. 12 Q. What did the telephone number show? 13 A. The telephone record show an outgoing call at 4:19 p.m. to 14 the number 718-487-6300. 15 Q. What is that number? 16 A. That's a calling card access number. 17 Q. Now, if you would please turn back to page 1800G and look, 18 please, at the row for the audio file in evidence as Government 19 Exhibit 1082. Please explain the information in that row. 20 A. Government Exhibit 1082, it is a call that was on April 30, 21 2000 at 8:15:34. It was an outgoing call from Mr. Sattar to 22 Mohamed Elmasry, and the telephone ID captured was 23 1-732-506-0640. 24 Q. What did the telephone record show? 25 A. The telephone records for Mr. Sattar's numbers showed a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6010 49MMSAT2 Sorrells - direct 1 long distance call to -- outgoing call at 8:15 p.m. to 2 732-506-0640. 3 Q. Let me show you an exhibit already in evidence which is 4 Government Exhibit 2081, which is a collection of business 5 cards. And I would like you to look, please, at the business 6 card currently on the top of the stack. And if you're able to, 7 if you would read for the record to whom does this business 8 card belong or whose card is it? 9 A. This card lists the name Mohamed, M-O-H-A-M-E-D; N.; 10 Elmasry, E-L-M-A-S-R-Y. 11 Q. Now I'd like to show you the back of the same card. If you 12 would read, please, the telephone number that appears in sort 13 of purplish ink in the middle of the back of that card. 14 A. 908-506-8640. 15 Q. Are the last seven digits of that number the same as the 16 telephone number that was captured by the recording system and 17 also appeared in Mr. Sattar's telephone records? 18 A. Yes, they are. 19 MS. BAKER: Your Honor, at this time the government 20 offers into evidence a stipulation marked as Government Exhibit 21 2081S. 22 THE COURT: All right. 23 MS. BAKER: I would ask permission to display and read 24 it to the jury. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6011 49MMSAT2 Sorrells - direct 1 MS. BAKER: The parties hereby stipulate and agree 2 that: If called as a witness at trial, a qualified expert, 3 Arabic-to-English translator employed by the Federal Bureau of 4 Investigation would testify that, in her opinion, the document 5 marked as Government Exhibit 2081T contains a true and accurate 6 translation from Arabic into English of certain Arabic 7 handwriting on the back of one of the business cards that is in 8 evidence as part of Government Exhibit 2081. 9 And that is agreed to and stipulated and signed by the 10 parties and their counsel. 11 Your Honor based on that exhibit, the government 12 offers Government Exhibit 2081T. 13 THE COURT: Government Exhibit 2081T received in 14 evidence. And to the extent that I didn't already say it, 15 Government Exhibit 2081S received in evidence. 16 (Government's Exhibits 2081S and 2081T received in 17 evidence) 18 MS. BAKER: Your Honor, may I have a minute to confer? 19 THE COURT: Yes. 20 MS. BAKER: Your Honor, we don't seem to have 2081T at 21 the moment. So I would ask permission to publish it later. 22 THE COURT: Okay. 23 MS. BAKER: Your Honor, Mr. Ruhnke has been nice 24 enough to hand me his photocopy of 2081T. If I might publish 25 it to the jury at this time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6012 49MMSAT2 Sorrells - direct 1 THE COURT: Yes. 2 Q. Agent Sorrells, if you would now turn please to the page in 3 chart in evidence as Government Exhibit 1800R and look, please, 4 at the row for the audio file, Government Exhibit 1231, which 5 is the last row on that page. 6 A. Okay. 7 Q. Would you please explain the information set forth in that 8 row? 9 A. This is a column 9/24/2001 at 5:38:30 p.m. It was an 10 outgoing call from Mr. Sattar to Jeanne King. 11 Q. What did the telephone records show? 12 A. The local telephone records, the LUDs showed an outgoing 13 call at 5:38 p.m. to telephone number 718-261-2255. 14 Q. I am going to show you now another one of the business 15 cards in evidence as part of Government Exhibit 2081 and if you 16 would, please, read for the record the name and what it says 17 right under the name on this business card. 18 A. The name is Jeanne, J-E-A-N-N-E; King, K-I-N-G, reporter. 19 Q. And what is the telephone number in the upper left-hand 20 corner of the card? 21 A. The number is 718-261-2255. 22 Q. Does that match the telephone number that was in 23 Mr. Sattar's telephone records for the call recorded as 24 Government Exhibit 1231? 25 A. Yes, it does. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6013 49MMSAT2 Sorrells - direct 1 Q. Let me ask you about some of the rows that appear in other 2 colors on this chart. So if you would please turn back to the 3 page in evidence as Government Exhibit 1800A and let's take as 4 an example rows that are in black. If you would look, please, 5 at rows for Government Exhibit 1003 and 1004 and please explain 6 what's set forth in those rows. 7 A. Starting with Government Exhibit 1003, it is a call that 8 was on the date of 12/14/1998 at 10:01:01 p.m. From the 9 transcript it was an incoming call from Mustafa Hamza to 10 Mr. Sattar, and near the end of that conversation Mr. Sattar 11 says it is 10:45 p.m. This is one of the calls where there is 12 one call but it is captured in two audio files. Then the call 13 on Government Exhibit 1004, same day, originates at 10:45:34 14 and it notes that it is just a continuation of the prior 15 government exhibit. 16 Q. And what, if anything, did Mr. Sattar's telephone record 17 show with respect to that call? 18 A. The local and long distance line showed that there were no 19 outgoing calls at the time that the transcript says that there 20 was an incoming call. 21 Q. Now, if you would please turn to the page that's in 22 evidence as Government Exhibit 1800M. Let me ask you to look 23 as an example of a green row at the row that is second from the 24 bottom of that page. What information is contained in that 25 row? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6014 49MMSAT2 Sorrells - direct 1 A. That is just a notation in green where either calls started 2 or ended. This particular one Sattar stops using MCI long 3 distance service and at a later date he starts using Verizon. 4 The last long distance call that I noted on the MCI records was 5 9/18/2000 at 8:07 a.m. 6 Q. As an example of a blue row, if you would look at the row 7 right below that for the audio file in evidence as Government 8 Exhibit 1269, what is the information in that row? 9 A. This was a call on 9/18/2000 at 1:50:20 p.m. It is an 10 outgoing call from Mr. Sattar to MCI. The contact ID number 11 captured was 1-800-937-104. Mr. Sattar canceled his telephone 12 service with MCI and stated that he would go back to Bell 13 Atlantic. 14 Q. What did you determine through your investigation? 15 A. I determined that the number 800-937-1048 is actually an 16 MCI customer service number. 17 MS. BAKER: Your Honor, at this time the government 18 asks permission to play for the jury the audio file in evidence 19 as Government Exhibit 1269 while displaying the corresponding 20 transcript which is Government Exhibit 1269X, and we would ask 21 the Court to let the jury know about how the government is 22 going to play that audio file. 23 THE COURT: Ladies and gentlemen, the recording will 24 reflect some music while there is a hold on the call and that's 25 reflected in the transcript. But those periods where that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6015 49MMSAT2 Sorrells - direct 1 holding music would otherwise be played, it is reflected on the 2 transcript. So you don't have to sit here and listen to the 3 hold music, the recording will be fast forwarded during those 4 periods to make the listening of the recording go somewhat more 5 quickly than the actual time of the recording. And you will 6 see that there is hold music when you look at the transcript. 7 MS. BAKER: Your Honor, may we display 1269X? 8 THE COURT: Yes. 9 MS. BAKER: For the record, this is a call that was 10 recorded on September 18 of 2000 at 1:50:20 p.m. and the 11 participants are Mr. Sattar and an MCI WorldCom operator named 12 Mrs. Fox. And then as the Court just noted, there were also 13 various recorded messages. If you would ask at this time for 14 the jurors to put on their headsets. 15 THE COURT: Ladies and gentlemen, you can put on your 16 headsets. Remember, dot facing forward and turn them. 17 MS. BAKER: One of the jurors is raising their hand. 18 THE COURT: Thank you. 19 MR. BARKOW: May I exchange them, your Honor? 20 THE COURT: Yes. 21 (At this point, Government Exhibit 1269, in evidence, 22 displayed and played to the jury) 23 THE COURT: Ladies and gentlemen, take off your 24 headphones. 25 Q. Agent Sorrells, if you would now turn please to the page in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6016 49MMSAT2 Sorrells - direct 1 chart in evidence as Government Exhibit 1800S. Government 2 Exhibit 1800S relates to calls that were recorded on which 3 telephone line? 4 A. Telephone No. 718-429-8539. 5 Q. And did you follow the same organization and color coding 6 and so on in Government Exhibit 1800S as you had in Government 7 Exhibits 1800A through R? 8 A. Yes, I did. 9 Q. Let's just look at one call as an example. If you would 10 look, please, at the top row for the audio file in evidence as 11 Government Exhibit 1067 and walk us through that row. 12 A. Government Exhibit 1067 is a call on 3/31/2000 at 9:59:42. 13 The information from the recorded call and transcript showed an 14 incoming call from Mr. Sattar to Mr. Yousry. The local 15 telephone records for Mr. Sattar show an outgoing call at 9:58 16 p.m. to Mr. Yousry's telephone. 17 Q. Now, if you would turn to the next page in evidence as 18 Government Exhibit 1800T. The calls reflected in this page of 19 chart were intercepted or recorded on which telephone number? 20 A. 917-676-4997. 21 Q. And did you use the same organizational structure and the 22 same color coding in this chart as in the previous ones? 23 A. Yes, I did. 24 Q. Finally, if you would turn to the page of chart in evidence 25 as Government Exhibit 1800U. The calls reflected in Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6017 49MMSAT2 Sorrells - direct 1 Exhibit 1800U were recorded on which telephone number? 2 A. On number 507-282-1211. 3 Q. Now, in creating Government Exhibit 1800U, did you use the 4 same organizational structure and the same color coding scheme? 5 A. Yes, I did. 6 Q. But were you using telephone records or some other kind of 7 records to look for information that corroborated the 8 recordings of the calls? 9 A. I was using other records. 10 Q. What were the other records? 11 A. They were prison records. 12 Q. And so the fifth column of Government Exhibit 1800U, which 13 is headed information from prison records, is that where the 14 prison record information appears? 15 A. Yes, it is. 16 Q. And the last column which is headed prison record GX 17 number, what is in that column? 18 A. That's the GX number for those prison records. 19 Q. And did you review those prison records yourself to ensure 20 that the information in Government Exhibit 1800U is accurate? 21 A. Yes, I did. 22 Q. Now, let me direct your attention away from any specific 23 page or row of the chart and ask you a couple of overall 24 questions. 25 Before coming to Court today, did you count the number SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6018 49MMSAT2 Sorrells - direct 1 of calls that are in evidence that were between Taha and Sattar 2 and calls between Taha and Yousef Odeh? 3 A. I'm sorry. Between Mr. Taha and -- 4 Q. Mr. Taha and either Mr. Sattar or Yousef Odeh? 5 A. Yes, I did. 6 Q. When you were counting calls, were you counting calls or 7 audio files and could you just remind us again of the 8 difference? 9 A. When I withdrew and counted, I tried to count single, 10 separate calls. If one call had three or four different audio 11 files, I only counted that as one call. 12 Q. So based on counting the calls in that manner, how many 13 calls have been introduced into evidence to which Taha is a 14 party? 15 A. 59 calls. 16 Q. Of those 59 calls, how many were incoming, outgoing? Could 17 you break that down for us? 18 A. I believe approximately 53 were incoming calls from 19 Mr. Taha to either Mr. Sattar or Odeh. Zero calls were 20 outgoing calls, and six calls that I saw were unknown. 21 Couldn't determine from the text of the call. 22 Q. When you were breaking those calls into those categories of 23 incoming versus outgoing versus unknown for that purpose, is 24 that breakdown based on the transcript of the call or what's in 25 the recording of the call? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6019 49MMSAT2 Sorrells - direct 1 A. I'm sorry? 2 Q. When you were breaking it down -- withdrawn. 3 You said there were approximately 53 that you could 4 tell were incoming and six for which you couldn't tell. When 5 you say you couldn't tell, that was based on what information 6 or what source of information? 7 A. Based on the transcript. 8 Q. Now, with respect to the telephone records, would 9 Mr. Sattar's telephone records have shown anything for any of 10 the incoming calls? 11 A. No. It would have only shown for incoming calls to 12 Mr. Sattar's records. They are not listed. It simply would 13 have shown and it is noted on here when there were no outgoing 14 calls at the same time there were incoming calls. 15 Q. And for the six calls for which you couldn't tell the 16 direction from what was in the transcript or what was said in 17 the conversation, did you also check the telephone records to 18 see whether there were any outgoing calls at the times of those 19 six recordings? 20 A. Yes, I did. 21 Q. Were there any outgoing calls at the times of those six 22 recordings? 23 A. No. 24 Q. Did you go through the same counting process for calls 25 between Sattar and Mustafa Hamza? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6020 49MMSAT2 Sorrells - direct 1 A. Yes, I did. 2 Q. How many calls did you find that are in evidence that are 3 between Sattar and Mustafa Hamza? 4 A. I counted 18 calls. 5 Q. Again, that's not counting audio files that are 6 continuations? 7 A. Correct. That's counting just separate calls. So if a 8 call was broken into three or four whatever the number of audio 9 files, I only counted it at one call. 10 Q. How many did you say there were? 11 A. There were approximately 18. 12 Q. Of those 18, what were the directions? 13 A. 14 were incoming calls. There were zero outgoing calls. 14 And then four were unknown. 15 Q. When you say unknown, again, was that just based on the 16 transcript? 17 A. Yes. 18 Q. For the four that were unknown based on the transcript, did 19 you look at the telephone records? 20 A. Yes, I did. 21 Q. And what did the telephone records show about whether there 22 were any outgoing calls during the time of those four incoming 23 calls? 24 A. They showed no outgoing calls. 25 Q. That was also true about the other 14, right, there were no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6021 49MMSAT2 Sorrells - direct 1 outgoing calls during the times of those either? 2 A. Correct. 3 MS. BAKER: May I have a minute, your Honor? 4 THE COURT: Yes. 5 MS. BAKER: I have no further questions. 6 THE COURT: Mr. Paul, you may examine. 7 MR. PAUL: Just a couple your Honor, please. 8 CROSS-EXAMINATION 9 BY MR. PAUL: 10 Q. Agent, to take up where Ms. Baker left off, you made a 11 chart which has been introduced and we have talked about this 12 morning where you went back and reviewed all of the government 13 exhibits with regard to the transcripts that have been 14 introduced in this case, is that right? 15 A. Yes, sir. 16 Q. When did you start working on this case, by the way? 17 A. When did I start working on the case total? 18 Q. Yes. 19 A. Approximately September of 2003. 20 Q. And you were given this assignment by the government to go 21 back and review the exhibits, transcripts that have been 22 introduced, listened to by the jury or are going to be listened 23 to by the jury and make this chart, is that right? 24 A. I was. Not at that time. 25 Q. Recently, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6022 49MMSAT2 Sorrells - cross 1 A. At some point later, yes, sir. 2 Q. And you told us that you have laid out in this chart 3 information showing the exhibit, call date, start time, and you 4 attempted to corroborate by reviewing both the transcripts and 5 the phone records to see that in fact it corroborated with what 6 your information was concerning that specific call, is that 7 right? 8 A. Looked at the transcripts and compared the telephone 9 records and other records to see if they corroborated, yes, 10 sir. 11 Q. Now, Ms. Baker asked you a few questions at the end of her 12 direct with regard to incoming calls regarding calls between 13 Mr. Sattar and two individuals. I think she asked you about an 14 individual Taha, right? 15 A. Yes. 16 Q. You're familiar with this individual, correct? 17 A. I'm familiar with the name, yes. 18 Q. And your information after you went back and reviewed the 19 transcripts, reviewed phone records of Mr. Sattar, you came up 20 with the fact that there had been 59 calls between these two 21 individuals, is that right? 22 A. 59 calls that are listed on this chart. 23 Q. 59 calls of all of the exhibits that have been introduced 24 with regard to telephone conversations in this case? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6023 49MMSAT2 Sorrells - cross 1 Q. Introduced by the government? 2 A. Yes. 3 Q. And of these 59 calls your investigation showed that there 4 were no calls outgoing by Mr. Sattar to Mr. Taha at any time 5 within these 59 calls, is that right? 6 A. None that I saw, correct. 7 Q. And that, in fact, you had six that you could not account 8 for, but clearly the telephone records showed, Mr. Sattar's 9 records, there was no indication that he had called Mr. Taha in 10 these six calls, is that right? 11 A. Not with the records that I had, correct. 12 Q. And with regard to another individual she asked you about, 13 Mr. Hamza, she asked you and you testified that there were 18 14 calls, correct, in total? 15 A. Yes. 16 Q. Of all of the calls that have been introduced by the 17 government in this case? 18 A. Yes, that's the number I counted. 19 Q. There were, in fact, zero outgoing calls that you could 20 corroborate in any way from Mr. Sattar's telephone records, 21 from him, he to Hamza, is that right? 22 A. Correct. 23 Q. Now, you also testified that you checked the phone records 24 to see the history of Mr. Sattar's telephone contacts, 25 specifically whether it was with Verizon, MCI, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6024 49MMSAT2 Sorrells - cross 1 A. Correct. 2 Q. And that's indicated in your chart, I believe you 3 testified, in green, is that right? 4 A. I'm sorry? 5 Q. The information concerning his business contact through -- 6 with his phone with either Verizon, MCI, or others, is that 7 right? 8 A. Yes. Would you like to check a specific exhibit? 9 Q. I am going to ask you to look at 1800L, if you would. 10 Okay? 11 A. Yes, sir. 12 Q. I believe at the bottom of that page -- you have two 13 inserts in green showing that Mr. Sattar stopped using Verizon 14 for long distance on August 5, 2000 and he stopped using it for 15 local calls on August 25, 2000. That's the bottom entry, is 16 that right? 17 A. Yes, that's correct. 18 Q. In fact, if you would turn to 1800N, one month later he is 19 back using Verizon, is that right, for local calls? 20 A. For local, yes. 21 Q. But he now has reestablished his contact with Verizon, is 22 that right, according to your records? 23 A. For local service? 24 Q. Yes. 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6025 49MMSAT2 Sorrells - cross 1 MR. PAUL: May I have just one second, please, your 2 Honor? 3 THE COURT: Yes. 4 MR. PAUL: I have no further questions. Thank you. 5 THE COURT: Ladies and gentlemen, at this point could 6 you please pass the exhibits up and Mr. Fletcher will collect 7 them for the moment. 8 MR. RUHNKE: We actually have a couple of questions. 9 THE COURT: Mr. Stern, you may examine. 10 CROSS-EXAMINATION 11 BY MR. STERN: 12 Q. Agent, I take it that this document, which is 1800A through 13 1800U, represents all the calls the government has put into 14 evidence, is that right? 15 A. Yes, to my knowledge. 16 Q. And you were asked at some point to scrutinize those calls 17 for calls between Taha and Mr. Sattar, correct? 18 A. I'm sorry. When you say scrutinize -- 19 Q. Did you look for calls between Taha and Sattar? 20 A. I counted the number of calls between Mr. Taha and 21 Mr. Sattar and Odeh. 22 Q. And did you count the number of calls between Mr. Yousry 23 and Mr. Taha? 24 A. No, I did not. 25 Q. Did you see if there were any calls ever between Mr. Yousry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6026 49MMSAT2 Sorrells - cross 1 and Mr. Taha? 2 A. No, I never checked. 3 Q. Did you ever check to see if there were calls between 4 Mr. Yousry and Mr. Hamza? 5 A. No, I did not. 6 Q. You don't know if there is any calls between Mr. Yousry and 7 Mr. Hamza, right? 8 A. No, sir, I did not. 9 Q. You didn't do it because no one ever asked you to do it, 10 fair to say? 11 A. Correct. 12 MR. STERN: Thanks. 13 MR. TIGAR: May I examine, your Honor? 14 THE COURT: Mr. Tigar, you may examine. 15 MR. TIGAR: Thank you. 16 May I return Ms. Baker's papers to her, your Honor? 17 THE COURT: Yes. 18 CROSS-EXAMINATION 19 BY MR. TIGAR: 20 Q. Agent Sorrells, how long did you work on this series of 21 charts that are in evidence now as 1800A through 1800U? 22 A. Meaning when did I start the chart? 23 Q. Yes. 24 A. I would say approximately maybe April or May, maybe later 25 than that. I am not sure of the exact time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6027 49MMSAT2 Sorrells - cross 1 Q. April of this year, April or May of this year? 2 A. Yes. 3 Q. And was this a joint project; that is, did you work on it 4 with others? 5 A. There were other people that I asked for input, but it was 6 mainly my project. There were other people that had input into 7 the chart. 8 Q. And who were those people? 9 A. Primarily, Ms. Baker. 10 Q. And did the chart go through a number of drafts? 11 A. Yes, there were various changes to format, et cetera. So 12 this was not the beginning chart that I started with. 13 Q. And in this process of working on the chart did you 14 exchange memoranda with anyone, written communications about 15 the work you were doing? 16 A. Between myself and Ms. Baker? 17 Q. Yes. 18 A. Not that I'm aware of. 19 Q. You had conversations with her about it? 20 A. Yes, sir. 21 Q. Now, in getting information from the chart you told us that 22 you looked at local records, right, known as LUDs? 23 A. Yes, sir, that's one of the examples of telephone records. 24 Q. And LUDs is LUD. What does that stand for? 25 A. I am not sure. I think local usage, but I am not sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6028 49MMSAT2 Sorrells - cross 1 Q. And you said that you were looking for calls and audio 2 files, correct? 3 A. I'm sorry? For. 4 Q. Calls. That is, recorded calls. You looked at the 5 recorded calls, right? 6 A. Yes, sir. I had the verbatim transcripts and the audio 7 files and looked to see whether the toll records corroborated 8 the audio and transcripts. 9 Q. And you noticed that in some cases a particular individual 10 call was, in fact, reflected in more than one audio file, 11 correct? 12 A. Correct. 13 Q. And did you look at the reasons why a call would have more 14 than one audio file connected with it? 15 A. The reasons why, no, sir. 16 Q. And how did you establish that one single call was broken 17 into more than one audio file? 18 A. I looked at the verbatim transcripts to see what the 19 transcript said about the call. 20 Q. Now, would you take a look, sir -- 21 MR. TIGAR: May I show the witness, your Honor, 1800B, 22 as in bravo? 23 THE COURT: Yes. 24 Q. I am going to place this on the Elmo and zoom out. That's 25 what everybody has been looking at. And you note, sir, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6029 49MMSAT2 Sorrells - cross 1 1016. You see where I have my finger? 2 A. Yes, sir. 3 Q. That's a call on the 29th of April 1999? 4 A. Yes. 5 Q. And that says unknown direction. Can you see that? 6 A. Yes. 7 MR. TIGAR: May I show the witness 1016X in evidence, 8 your Honor? 9 THE COURT: Yes. 10 Q. Now I am going to place on the Elmo 1016X, which is in 11 evidence, that the jurors have seen and I am going to zoom in 12 to the top of it, correct? Do you see that? 13 A. Yes, sir. 14 Q. And it says call direction outgoing, right? 15 A. Correct. 16 Q. And yet 1800 bravo that we just looked at says unknown 17 direction, correct? 18 A. Correct. 19 Q. Well, is 1016X a mistake? 20 A. I'm sorry? 21 Q. It says outgoing here, right? 22 A. Yes, it does. 23 Q. Is that a mistake? 24 A. I don't know if it is a mistake, but I looked at the text 25 of that particular call, and from looking at the text I can't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6030 49MMSAT2 Sorrells - cross 1 tell whether it is incoming or outgoing. 2 Q. This is a government exhibit, right? 3 A. Yes, it is. 4 Q. Do you know who decided to put outgoing on there if in 5 looking at the call you couldn't tell which way it was? 6 A. I'm sorry. I believe the system puts outgoing on there. 7 Q. When you say the system put outgoing on there, what system 8 would that be? 9 A. The system that captured the call. 10 Q. So that would be the Lockheed Martin system that captured 11 the call that made the mistake? 12 A. I am not sure which call captured that listing as outgoing. 13 Q. Do you know when, up until what date, the Lockheed Martin 14 system was used to capture calls by the government? 15 A. No, I don't. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6031 49mesat3 Sorrells - cross 1 BY MR. TIGAR: 2 Q. Have you heard any discussion -- have you had any 3 discussions with people about the dates up to which the 4 Lockheed Martin system was used? 5 MS. BAKER: Objection. 6 THE COURT: Sustained. 7 Q. Well, you are aware, are you not, that as late as the year 8 2000 there were problems with the accuracy of the recordings 9 made on the Lockheed Martin system, correct? 10 MS. BAKER: Objection. 11 THE COURT: Overruled. 12 Q. You're aware of that, aren't you? 13 A. I'm sorry. Could you ask the question again. 14 Q. Yes. You are aware that as late as June of 2000 there were 15 problems with the calls that were being recorded on the 16 Lockheed Martin system, correct? 17 MS. BAKER: Objection. Lack of foundation and vague. 18 MR. TIGAR: I'll lay a foundation, your Honor, if 19 necessary. 20 THE COURT: All right. 21 Q. Directing your attention, sir, to June of 2000, did you 22 receive an e-mail from Nabila Banout about problems with the 23 call that was being recorded? Do you remember that? 24 A. I did receive an e-mail from Ms. Banout about problems with 25 audio of the call, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6032 49mesat3 Sorrells - cross 1 Q. And so based on that e-mail you're aware that there were 2 some problems with the recordings of the -- that were being 3 made in June of 2000, correct? 4 A. I was aware that that -- Ms. Banout -- I believe the e-mail 5 that you're referring to, I was aware that there were -- that 6 the quality of that call, there were noises or some type of 7 problem with that call compared to other calls that Ms. Banout 8 had listened to. 9 Q. Now, a moment ago you told us, Agent Sorrells, that it was 10 the system that generated this outgoing, correct? 11 A. To my knowledge it's the system. I'm not an expert on the 12 system so ... 13 Q. Are you familiar with the initials SRI? 14 A. No, I'm not. 15 Q. Signal related information? 16 A. No, sir. 17 Q. In any of the incoming, outgoing or unknown attributions 18 that you made in preparing Government Exhibits 1800A through 19 1800U, did you look at the actual audio files that are 20 reflected in column one of those various exhibits? 21 A. Some of those, yes. 22 Q. Well, when you looked at that audio information, do you 23 remember telling the jury a while ago that there's a place you 24 can look in that file and see some information about how long 25 the call lasted? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6033 49mesat3 Sorrells - cross 1 A. Yes, I did. 2 Q. And based on your experience in looking for that kind of 3 information, how do you open the file on the computer to get 4 that? How do you do that? 5 A. I don't remember which system I used, but I right-clicked, 6 opened the file, scrolled down to the nonaudio portion of the 7 file. And that's where I found the information that I was 8 looking for, when a call -- particular time that a call ended. 9 Q. So that when you opened it, would it refresh your 10 recollection if I said Notepad? 11 A. I believe that's one system you can use, yes. 12 Q. So when you opened the file in Notepad, you can see some 13 textual information there, correct? 14 A. Correct. 15 Q. And there's some textual information at the beginning and 16 textual information at the end, right? 17 A. Correct. 18 Q. Now, when you look at, open a file in Notepad, do you see 19 textual information in there that tells you whether the call is 20 incoming or outgoing? 21 A. I'm not sure. 22 MR. TIGAR: May I show the witness 1800E, your Honor, 23 on the Elmo, in evidence. 24 THE COURT: Yes. 25 Q. I'm going to show you, Agent, 1800E, as in echo, and ask SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6034 49mesat3 Sorrells - cross 1 you -- let's look at 1060. Do you see that, where my finger 2 is? 3 A. Yes, sir. 4 Q. Call number 1060? 5 A. Yes, sir. 6 Q. That's a call on the 12th of February, 2000, correct? 7 A. Yes, it is. 8 Q. And the -- you decided that that was an incoming call, 9 correct? 10 A. I looked at the text of the transcript and I believe the 11 transcript says that it's an incoming call. 12 Q. All right. Now that's 1060, right? 13 A. Yes. 14 MR. TIGAR: Your Honor, may I show the witness 15 1060X -- 16 THE COURT: Yes. 17 MR. TIGAR: -- in evidence. 18 Q. Showing you now, sir, 1060X in evidence. Can we agree 19 that that says outgoing? 20 A. You're talking about the call direction? 21 Q. Yes. 22 A. Yes. The call direction does say outgoing. 23 Q. And looking back at 1060 -- 24 MR. TIGAR: May I show him 1800E, your Honor. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6035 49mesat3 Sorrells - cross 1 Q. Looking back at 1800E, your 1060 says incoming, correct? 2 A. Yes, sir. From the text it -- 3 Q. So your statement that it must have been based on the 4 transcript had to be an error, correct? 5 MS. BAKER: Objection. 6 THE COURT: Overruled. 7 A. I'm sorry. Would you ask the question again. 8 Q. Your statement a few minutes ago that your calling it 9 incoming was based on the transcript was in error, correct? 10 A. No, sir. I don't believe that to be true. 11 Q. Well, can you tell the jury, please, why it is that you 12 wrote incoming on 1800E and the words outgoing appear on 1060X, 13 which is the actual call that the government introduced in 14 evidence to this jury? 15 A. Yes, sir. I do see where the call direction is listed as 16 outgoing. From looking at the text, Mr. Sattar speaks first in 17 this particular call. 18 The -- I also looked at the toll, the LUDs. The tolls 19 and LUDs show no outgoing call. So to me that seems to support 20 that Mr. Sattar was receiving an incoming call because he spoke 21 first in this -- on the text of that call. 22 Q. Well, Mr. Sattar is speaking first, you say that's because 23 the transcript has him speaking first, correct? 24 A. Correct. 25 Q. Nobody says hello, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6036 49mesat3 Sorrells - cross 1 A. Not that I see, no, sir. 2 Q. Well, can you explain, then, why if your analysis supports 3 incoming, why the government would put in evidence before the 4 jury a piece of paper that says outgoing? 5 MS. BAKER: Objection. 6 THE COURT: Sustained. 7 Q. Do you know why someone put outgoing here? 8 MS. BAKER: Objection. 9 THE COURT: Overruled. 10 A. No, sir, I don't. 11 Q. Do you know who put outgoing there? 12 A. I think it must be the system, but I'm not positive to 13 that. 14 Q. You say "the system" means the system that captures the 15 calls, right? 16 A. Whatever system was used for it at that time. 17 Q. When you use the term capture in your testimony, you mean 18 what the system used by the Federal Bureau of Investigations to 19 record calls obtains, correct? 20 A. Yes. 21 Q. That is, the word capture means that it -- the system 22 captures the voices of people who talk, correct? 23 A. Records it, correct. 24 Q. And it also captures information about the telephone 25 numbers and the direction of the call, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6037 49mesat3 Sorrells - cross 1 A. Yes. It often captures the -- whether it's listed as 2 outgoing, unknown or incoming. 3 Q. Now, have you -- did you go back to the original audio file 4 that -- from which 1060, 1060X was obtained to check on this 5 information? 6 A. When you say "the original audio file," I used the 7 transcript and I don't know if I looked, checked that 8 particular one on the CD or DVD for the nonaudio information. 9 MR. TIGAR: May I approach the witness, your Honor, 10 and bring a laptop to the -- to up -- 11 THE COURT: Yes. 12 MS. BAKER: Your Honor, may I approach also and stand 13 next to Mr. Tigar so I can see what he's showing the witness. 14 THE COURT: Yes. 15 BY MR. TIGAR: 16 Q. Agent, I'm going to place in front of you a laptop computer 17 with a DVD drive. And I'm going to show you what is in 18 evidence as Government Exhibit 1000, or a copy of it initialed 19 by Agent Kerns that was provided to us. 20 I'm going to place this CD in the CD drive. Now I'm 21 going to change the view to details. Do you see that? So that 22 we can see the details of the files that are on this disk. Now 23 I'm going to maximize the screen. 24 A. OK. 25 Q. Would you please find and open in the Notepad program the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6038 49mesat3 Sorrells - cross 1 audio file that is reflected in 1060X. And if you need to 2 consult anything else to find it, we'd be happy to help you. 3 May I look over your shoulder? 4 A. Yes, sir. Looking for 2000/2/12. 5 Q. We may have to scroll down. I think they're in inverse 6 order. If you want to take the cursor over and just pop that 7 down, see if -- 2000/02/12, do you see that file? Let's look 8 at which one of those calls it is. That's 150532, correct, in 9 military time or 24-hour time? 10 A. Correct. 11 Q. So can we agree that that's the file the cursor is pointed 12 at right now? 13 A. Yes. 14 Q. All right. Let's see if we can open that in Notepad. Open 15 with. Notepad. And that is opening that file, correct? 16 A. Correct. 17 Q. And it's going to take a while because that's a big file, 18 isn't it? 19 A. I believe it is. 20 Q. I'm going to maximize that file. 21 Now, can you see a call direction listing in Notepad 22 on this file which is the audio file of 1060X? 23 A. Yes, I do. 24 Q. And what does it say? 25 A. It says, call direction equals, and has an O beside it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6039 49mesat3 Sorrells - cross 1 Q. Now, is it your understanding that the O means outgoing? 2 A. Correct. 3 MR. TIGAR: All right. May I leave the computer up 4 here, your Honor, because I may come back to it. 5 THE COURT: Yes. 6 MR. TIGAR: Thank you. 7 Q. Now, so, Agent, what we have -- 8 MR. TIGAR: May I show the agent 1060X again, your 9 Honor. 10 THE COURT: Yes. 11 Q. We have -- the file you just looked at shows outgoing, 12 correct? 13 A. Yes, sir. 14 Q. And that is an FBI file that was created at the time the 15 call was recorded, correct? 16 A. Correct. 17 Q. And then we see it says outgoing on 1060X, correct? 18 A. Correct. 19 Q. And then we have -- 20 MR. TIGAR: May I show the witness 1800E, your Honor. 21 THE COURT: Yes. 22 Q. Then we have 1800E that says incoming, correct? 23 A. Correct. 24 Q. So we have Agent Sorrells says that 1060X and the computer, 25 the FBI actual computer that records things are incorrect and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6040 49mesat3 Sorrells - cross 1 actually it's incoming, right? 2 A. No, sir, I didn't say it's incorrect. I just said if you 3 look at the full text that I got from the transcript, it notes 4 that that was -- the beginning of this call was an incoming 5 call via call waiting. After Mr. Sattar finishes with the call 6 waiting, he goes back to talk to Mr. Hamza and it's listed 7 as -- the direction was unknown for that one. Then recording 8 ends after the -- a next call waiting beep. 9 MR. TIGAR: So may I show the witness 1800E, your 10 Honor. 11 THE COURT: Yes. 12 Q. So if we zoom in here, this is the call we're talking 13 about, 1060, correct, Sattar receives incoming call, right? 14 A. Correct. 15 Q. So you say there's an incoming call and a direction unknown 16 call, right, is that what you said? 17 A. I said that from looking at the text, the English text 18 verbatim transcript of this call, Mr. Sattar receives an 19 incoming call via call waiting. Then Mr. Sattar continues with 20 an ongoing call with Mr. Hamza. The direction with that one 21 listed is unknown. Although from counting through the chart, I 22 know that Mr. Hamza -- all the other calls that Mr. Hamza had 23 made had been incoming calls to Mr. Sattar. 24 Then there's a recording. The recording ends after 25 another call waiting beep, at the end of that audio segment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6041 49mesat3 Sorrells - cross 1 Q. In fact, sir, you told Mr. Paul in answer to his questions, 2 or you answered Mr. Paul's question that you were not able to 3 find any outgoing calls from Mr. Sattar to Mr. Hamza, correct? 4 A. Correct. 5 Q. So am I correct that, based on your analysis that you did, 6 this call, 1060, is an incoming call and a direction unknown 7 call, right? 8 A. It is an incoming call, and I believe, based on the text 9 and then added to the toll records, that Mr. Hamza on the other 10 records I've reviewed always comes -- calls in. Mr. Sattar 11 gets an incoming call via call waiting. Then after he ends the 12 call waiting call, he returns to the call with Mr. Hamza. But 13 from the text of that call with the use of call waiting, he 14 already had Mr. Hamza on the line prior to that -- receiving 15 that incoming call. 16 Q. Do you have any explanation as you sit there today why the 17 official FBI computer that captured this call put it in as 18 outgoing? 19 A. No, sir. I'm not an expert on the system, as to why it was 20 listed as outgoing. 21 Q. And do you -- we've established that you don't know who put 22 outgoing on Government 1060X that was introduced in evidence to 23 this jury. 24 A. I believe it was -- it's listed there in the call direction 25 by the system, but I'm not an expert on the system, no, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6042 49mesat3 Sorrells - cross 1 MR. TIGAR: May I show the witness 1800B again, that's 2 1800 bravo. 3 THE COURT: Yes, sir. 4 MR. TIGAR: Oh, I'm reminded by my cocounsel, your 5 Honor. Can I get some help to get rid of the purple arrows on 6 the screen, right-hand corner of this screen here -- other 7 right. Thank you. 8 1800 bravo. 9 Q. Now, this is a call in which -- can we look here on 1800 10 bravo for call 1017, 1017 in red. You there say unknown 11 direction, right? Take your time. 12 Do you have 1800 bravo? 13 A. Yes, I do. 14 Q. All right. And would you look at 1017. And you see it 15 says unknown direction, correct? 16 A. Are you talking about the call with Mr. Al-Sirri? 17 Q. Right. 18 A. Yes. 19 Q. And then you verify that with an outgoing call from 20 Mr. Al-Sirri -- excuse me, outgoing call to Mr. Al-Sirri, 21 correct? 22 A. Yes. The toll records show an outgoing call from 23 Mr. Sattar's to Mr. Al-Sirri. 24 Q. OK. So you say unknown direction. 25 Can you explain to us these two columns, what your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6043 49mesat3 Sorrells - cross 1 analysis was there, sir. 2 A. Yes, sir. Can we look at Government Exhibit 1017 to see 3 the text? 4 Q. Yes. Would you like to look at 1017? 5 A. Yes, sir, I would. 6 MR. TIGAR: May I put it up on the Elmo, your Honor. 7 THE COURT: Yes. 8 Q. 1017X. Here we go. Go ahead. What part would you -- or 9 would you prefer that I hand it to you so that you can look at 10 it? Would that be easier? 11 A. No, that's fine, I think. 12 Q. OK. 13 A. OK. What you would you like to know about this? 14 Q. What I'd like to know is the basis for your saying that on 15 1800 bravo -- 16 MR. TIGAR: May I show that again, your Honor. 17 THE COURT: Yes. 18 Q. All right. That this says unknown direction, and then over 19 here in this other column it says outgoing. Could you explain 20 how you come to -- what that means? 21 A. Yes, sir. From looking at the text, in the fourth column 22 from looking at the text that was provided, I couldn't tell 23 whether that was an incoming or outgoing call. The toll 24 records show it was an outgoing call, and I believe it to be an 25 outgoing call. But from looking at the text that was on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6044 49mesat3 Sorrells - cross 1 verbatim transcript, I couldn't tell that. 2 Q. So you believe it to be an outgoing call, correct? 3 A. I'm sorry? 4 Q. You believe it to be an outgoing call, correct? 5 A. I believe a portion of that to be an outgoing call, yes. 6 Q. And that's based on your review of the toll records, 7 correct? 8 A. Yes. 9 MR. TIGAR: May I show the witness 1017X, your Honor. 10 THE COURT: Yes. 11 Q. Do you notice at the top here it says incoming, right? 12 A. Yes. 13 Q. That is, when the jury was shown this call and read, it 14 said -- it was shown up on the screen and said incoming, right? 15 A. Yes, correct. 16 Q. Now you looked at 1017X as you were preparing your chart, 17 correct? 18 A. Yes, I did. 19 Q. Well, did you make any effort to figure out why, after you 20 concluded it was outgoing, that this thing said it was 21 incoming? 22 MS. BAKER: Objection. 23 A. I noted in -- 24 Q. "This thing" I mean is 1017X. 25 MS. BAKER: Sorry, your Honor. I objected but the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6045 49mesat3 Sorrells - cross 1 Court might not have heard because I stepped on the witness' 2 speaking. 3 THE COURT: I'm sorry. I didn't hear the objection. 4 Why don't you -- why don't you place the question again. 5 BY MR. TIGAR: 6 Q. Sure. After you concluded, sir, that at least a portion of 7 the call in evidence as 1017 was outgoing, and after you'd 8 looked at 1017X, did you make any attempt to find out why it 9 said incoming here when your conclusion had been it was 10 outgoing? 11 A. I knew that the -- I know -- as I noted in the text there, 12 that Mr. Sattar had just finished another call via call 13 waiting. So I listed the -- tried to list that in the 14 transcript. And then from looking at the text again, in 1017X 15 I couldn't tell whether -- simply from the text whether that 16 was an in -- I couldn't tell whether that was an incoming or 17 outgoing, so I listed it as unknown. 18 Q. My question is: Did you go back to the signal -- 19 withdrawn. 20 Can we agree that the Notepad material that we looked 21 at, can we call that signal related information? 22 A. Sure. 23 Q. Or SRI? 24 A. Sure. 25 Q. OK. Did you go back to the SRI on the file for 1017X and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6046 49mesat3 Sorrells - cross 1 try to find out why the system had coded this call as incoming 2 when, in fact, it was outgoing? 3 MS. BAKER: Objection. 4 THE COURT: Rephrase. 5 Q. Sorry. Did you go back to the original audio file -- 6 A. No, I did not. 7 Q. -- to figure out -- let me finish my question here. 8 A. OK. I'm sorry. 9 Q. Did you go back to the original audio file that is 10 eventually reflected in 1017X to find out whether it said 11 incoming, and if so, why? 12 MS. BAKER: Objection. 13 THE COURT: Overruled. 14 A. No, I did not. 15 MR. TIGAR: Now, may I show the witness 1800B again, 16 your Honor. 17 THE COURT: Yes. 18 Q. Now, I'm going to just take a look here, 1245, call 1245. 19 Yes, sir. Do you see that, 1245? 20 A. Yes, I do. 21 Q. And that's an incoming, correct? 22 A. Yes, it is. 23 Q. And 1247 is an incoming, correct? 24 A. Yes. 25 Q. And 1021 is an incoming, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6047 49mesat3 Sorrells - cross 1 A. Yes. 2 Q. And 1022 is an incoming, correct? 3 A. Correct. 4 Q. And 1025 is an incoming, correct? 5 A. Correct. 6 MR. TIGAR: May I show the witness 1246X, your Honor, 7 in evidence. 8 THE COURT: Yes. 9 Q. Placing on the Elmo 1246X. Now that's a call that you say 10 is incoming because it -- I made a mistake. I made a mistake. 11 MR. TIGAR: May I show the witness 1247X, your Honor. 12 THE COURT: Yes. 13 Q. All right. Here's 1247X. Now, your chart says that that 14 is incoming, correct, 1247? 15 MS. BAKER: Your Honor, these transcripts are not in 16 evidence because these calls are in English. 17 MR. TIGAR: I'm sorry, your Honor. May I show the 18 witness 1247, which was shown to the jury as an aid to their 19 review because the call was in English, your Honor. 20 THE COURT: All right. 21 Q. Showing you now 1247, which was shown to the jury as an aid 22 to their listening to this call, that says outgoing, right? 23 A. Correct. 24 Q. And you concluded it was incoming, right? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6048 49mesat3 Sorrells - cross 1 Q. And once again, did you go back to the original record, the 2 original audio file to find out how that happened? 3 A. No, I did not. 4 Q. Were you aware before coming to court this morning that 5 there was this disparity between what that thing I've just 6 shown you had shown about the call and your chart? 7 A. Yes. I -- I based my chart on the text. I was aware that 8 there are certain verbatims where the call direction was 9 listed -- one that you showed and just this one which you 10 listed was different from the text in my chart. 11 MR. TIGAR: And may I show the witness 1021X, your 12 Honor. 13 THE COURT: Yes. 14 Q. Now, 1021X which is in evidence says unknown, right? 15 A. Correct, under the -- at the call direction portion it says 16 unknown. 17 Q. Yes, call direction portion. 18 And you concluded that's incoming, right? 19 A. Correct. 20 Q. Where the call direction is unknown, in your opinion, and 21 the original audio file says incoming or outgoing, all right, 22 there's -- the audio file could be right, could be wrong, 23 correct? 24 A. I don't know that I would say could be right, could be 25 wrong. I would -- in that situation I would go as I did here SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6049 49mesat3 Sorrells - cross 1 and go by the text that the language matches compared when 2 listening to the call. 3 Q. Now, do you think as an investigator it matters whether A 4 calls B or B calls A? 5 MS. BAKER: Objection, relevance. 6 THE COURT: Overruled. 7 A. I'm sorry. Do I think it's important? 8 Q. Do you think it's important whether A calls B or B calls A? 9 A. I think that's very useful information. 10 Q. In fact, you were asked by the prosecutors to do a chart of 11 who called whom with respect to Mr. Taha and Mr. Sattar, 12 correct? 13 A. Correct. 14 Q. And you were asked to do it with respect to Mr. Hamza and 15 Mr. Sattar, correct? 16 A. No, I'm sorry. When you say do a chart -- I didn't do a 17 chart just based on Mr. Sattar and Mr. Taha. 18 Q. I'm sorry. You were asked to count and then report to us, 19 right? 20 A. Correct. 21 Q. And you did a sort of a handwritten -- you made some 22 handwritten notes about that at the time, right? 23 A. Correct. 24 MR. TIGAR: Now, may I show the witness 1800C, your 25 Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6050 49mesat3 Sorrells - cross 1 THE COURT: Yes. 2 Q. Now, looking here at 1800C, I want to go down to call 3 number 1034. Do you see that? 4 A. Yes, I do. 5 Q. Now, you tell us there with Yousry already on phone, he and 6 Sattar make outgoing three-way call to Ramsey Clark; correct? 7 A. Correct. 8 Q. After Yousry hangs up, Sattar and Clark make an outgoing 9 three-way call to Muhammad Al-Shafi'i, right? 10 A. Correct. 11 Q. Now, the names in there are the correct names, would you 12 agree with that? 13 A. I'm sorry. The names of the participants? 14 Q. Yes. 15 A. Yes. 16 Q. That is, you're able to tell that Mr. Yousry is talking, 17 right? 18 A. Am I personally able to tell or -- 19 Q. Well, from the evidence that you had available to you, you 20 could tell that, right? 21 A. Correct. 22 Q. You concluded that? 23 A. Correct, from looking at the transcripts of the -- a 24 verbatim transcript. 25 Q. And from looking at the verbatim transcript and other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6051 49mesat3 Sorrells - cross 1 things, you could tell Mr. Sattar was talking, right? 2 A. Correct. 3 Q. And did you listen to the call actually and see whether 4 that was Mr. Clark? 5 A. I listened to the first portion of that call, yes. 6 Q. And you could tell that was -- at least he kind of talks 7 like you and I do? 8 A. Possibly. Sounded like Mr. Clark to me, but I don't know 9 that I've heard Mr. Clark's voice a lot of times. But it did 10 sound like Mr. Clark. 11 Q. All right. Now, when you say Sattar and Clark make the 12 outgoing three-way call, Mr. Clark didn't make that call, did 13 he? 14 A. That reference means that Mr. Clark and Mr. Sattar are on 15 the same line and the 3513 number made the outgoing call. 16 Q. So wherever we see you saying in here that A and B make a 17 call to someone, we also have to look at whose actual phone was 18 being used, because it's the person whose actual phone's being 19 used that actually dialed the number and made the call, 20 correct? 21 A. Correct. 22 MR. TIGAR: Your Honor, I have a number of other 23 exhibits to go through. And I can keep on going, but it is 24 getting close to the lunch hour. 25 THE COURT: Could you keep going until Mr. Fletcher SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6052 49mesat3 Sorrells - cross 1 tells me that the jurors' lunch has arrived. Thank you. 2 MR. TIGAR: May I have just a moment, your Honor. 3 THE COURT: Unless you need the break. 4 MR. TIGAR: I don't need -- I just need to find a file 5 over here, which I hope will take me just a moment. 6 THE COURT: No problem. 7 BY MR. TIGAR: 8 Q. Agent, did you -- in order to shorten this process, did you 9 actually make a list of the instances in which your conclusion 10 about the direction of a call differed from the direction that 11 was reflected in the FBI computer that actually captured the 12 call? 13 A. Meaning the direction that's listed on -- under call 14 direction? 15 Q. Yes, sir, in the SRIs. 16 A. No, I did not. 17 Q. If -- 18 MR. TIGAR: Your Honor, I respectfully ask permission 19 to shorten this. If I could read out to the agent a list of 20 calls and ask him over the lunch hour to verify that the call 21 direction is different. 22 THE COURT: All right. 23 Q. Do you have a pencil, sir? 24 A. Actually, I don't. 25 MR. TIGAR: May I approach, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6053 49mesat3 Sorrells - cross 1 THE COURT: Yes. 2 A. I'm going to need something to write on. 3 Q. All right. I'll give you a pad. 4 MR. TIGAR: Can I hand the agent a pen and some 5 Post-its? 6 THE COURT: Yes. 7 Q. All right. 1016, 1017, 1245, 1247, 1021, 1022, 1025, 1028, 8 1035, 1256, 1257, 1060, 1061 -- and as to 1061, which is on 9 GX1000, do you have time to check to see that the SRI says 10 outgoing. 1062, 1083, 1091, 1092, 1120X, 1160? 11 A. I'm sorry. What was the last one you gave before 1160? 12 Q. I gave you 1120. 13 A. OK. 14 Q. 1160, 1164, 1100, 1102, 1104. 15 MR. TIGAR: And with that, your Honor, now would be a 16 good time to take a break, because I think if he could look at 17 that, that would shorten it a lot. 18 THE WITNESS: Can I clarify, your Honor. 19 THE COURT: All right. 20 THE WITNESS: Mr. Tigar, you're asking me to check the 21 SRI, the information -- 22 MR. TIGAR: No. The only SRI I wanted you to check 23 was with respect to the one call, 1061. And as to the others, 24 I'll just ask you to check the T and X exhibits. 25 THE WITNESS: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6054 49mesat3 Sorrells - cross 1 MR. TIGAR: And that way then we can move through this 2 more quickly, if you would help me out there. 3 And I do respectfully request, your Honor, we take a 4 break now. 5 THE COURT: All right. Ladies and gentlemen, we'll 6 break until 20 after 2:00. Please remember my continuing 7 instructions. Please, don't talk about this case at all. 8 Remember to keep an open mind until you've heard all of the 9 evidence, I've instructed you on the law and you've gone to the 10 jury room to begin your deliberations. 11 Have a good lunch. I'll see you later this afternoon. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6055 49mesat3 Sorrells - cross 1 (In open court; jury not present) 2 MR. TIGAR: And I'm sure the witness knows the rules 3 but may be admonished. 4 THE COURT: How is the witness supposed to get the T 5 and the Xs? 6 MS. BAKER: Your Honor, if I might just -- 7 MR. TIGAR: Without discussing them, your Honor. 8 That's not -- I mean -- 9 THE COURT: That's fine. 10 MR. TIGAR: Thank you. 11 THE COURT: That's fine. You should -- the government 12 will give you the relevant exhibits, but don't talk about the 13 substance of your testimony. 14 THE WITNESS: Sure. 15 THE COURT: All right. 16 (Luncheon adjournment) 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6056 49mesat3 Sorrells - cross 1 AFTERNOON SESSION 2 2:25 p.m. 3 (In open court; jury present) 4 THE COURT: All right. Agent Sorrells is on the 5 stand. Mr. Fletcher? 6 THE DEPUTY CLERK: The witness is reminded he's still 7 under oath. 8 THE COURT: All right, Mr. Tigar. You may proceed. 9 BY MR. TIGAR: 10 Q. Agent Sorrells, I forgot to ask you before: When you were 11 working on this series of charts, did you communicate with 12 other members of the government team by e-mail about your work? 13 A. No. 14 Q. Now, do you have the Post-it? 15 A. Yes, I do. 16 Q. All right. What's the first number on there? 17 A. 1016. 18 Q. OK. And 1016, your chart says unknown direction and the 19 exhibit in evidence shows outgoing, correct? 20 A. Yes, correct. 21 Q. And 1017, your chart says unknown direction and the exhibit 22 in evidence says incoming, correct? 23 A. When you say "exhibit in evidence," are you talking about 24 the call -- 25 Q. 1017, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6057 49mesat3 Sorrells - cross 1 A. The call direction, yes. 2 Q. And with 1245 your chart says incoming and 1245X says 3 outgoing? 4 A. Correct. 5 Q. With respect to 1247, your chart says incoming? 6 A. Correct. 7 Q. What does 1247X say? 8 A. I'm sorry. Under call direction, yes. 9 Q. 1247, yes. 10 A. It says outgoing. 11 Q. With respect to 1021, your chart says incoming, correct? 12 A. Correct. 13 Q. And 1021X in evidence says unknown, correct? 14 A. Unknown under call direction, yes, sir. 15 Q. With respect to 1022 your chart says incoming, correct? 16 A. Correct. 17 Q. 1022X in evidence says unknown on call direction, correct? 18 A. Correct. 19 Q. With respect to 1025 your chart says incoming, correct? 20 A. Correct. 21 Q. 1025X in evidence says outgoing? 22 A. Under call direction? 23 Q. Yes. 24 A. Yes, correct. 25 Q. Turning now to the calls on 1800C as in Charlie, 1828X, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6058 49mesat3 Sorrells - cross 1 your chart says incoming, correct? 2 A. Correct. 3 Q. 1028X in evidence says unknown, correct? 4 A. Correct. 5 Q. With respect to 1035 your chart says incoming, correct? 6 A. Correct. 7 Q. 1035X in evidence says unknown, correct? 8 A. Correct. Again, under call direction. 9 Q. Under call direction, yes. 10 1800D as in delta, 1256, your chart says incoming, 11 correct? 12 A. I'm sorry. I had 1245 and 1247. I didn't get -- what was 13 the last government exhibit you read? 14 Q. I'm sorry. On 1800 delta, D as in delta, do you have 1256 15 on your Post-it? 16 A. I have listed 1 -- I'm sorry, 1257. 17 Q. All right. Let's look at 1257. Your chart -- 18 A. On the Post-it I have 1247. 19 Q. Wait a minute. 20 A. I think I may have written that down wrong. 21 Q. OK. I had not intended to ask you about that one, so 22 I'm -- 23 A. I believe I checked 1257, but I'll have to clarify that. 24 Q. 1257, check on your chart, that's 1800 delta. The chart 25 says incoming, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6059 49mesat3 Sorrells - cross 1 A. I may need to see that -- 1257 I may need to see that 2 government exhibit again. 3 Q. All right. 1257X. I just want to first ask you, does your 4 chart say incoming on that call? 5 A. For 1257? 6 Q. Yes, sir. 7 A. The chart says a continuation of the previous call, then 8 Mr. Sattar receives an incoming call via call waiting, then 9 continues with Hamza and later makes an outgoing three-way 10 call. 11 Q. All right. And 1257X -- 12 MR. TIGAR: May I show it to the witness? 13 THE COURT: Yes. 14 MR. TIGAR: In evidence. 15 Q. -- says unknown, correct? 16 A. Correct. I think I just wrote it wrong on the sticky. 17 Q. Turning to 1800E as in echo, now, 1060, the chart says 18 incoming, right? 19 A. Correct. 20 Q. And the corresponding X, 1060X in evidence, is outgoing, 21 correct? 22 A. Correct. 23 Q. Now, I want you now to look at 1800H as in hotel. We're 24 going to skip some here. 25 A. OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6060 49mesat3 Sorrells - cross 1 Q. I asked you to look at 1091X, correct? 2 A. Correct. 3 Q. And on that one your chart has -- on that one your chart 4 has it correct, does it? 5 A. On the chart I have the -- that's a continuing call between 6 Mr. Taha and Sattar, and then they make an outgoing three-way 7 call to Mohammed Salah. And then during the conversation, 8 states some things Mr. Sattar says. 9 Q. Now, looking at the Post-it that you made based on the 10 numbers that I read out to you, is it the case that all of the 11 calls I read out to you except for 1091X, there is a difference 12 between the call direction that you show on your chart, the 13 1800 series of exhibits, and the transcript in evidence? 14 A. That is correct. 15 Q. And if we could go back and count up that number of calls. 16 A. I had 23 on my Post-it. 17 Q. Twenty-three calls? 18 A. Correct. 19 MR. TIGAR: May I approach the witness, your Honor. 20 THE COURT: Yes. 21 MR. TIGAR: And may I bring up the computer again, the 22 laptop. 23 THE COURT: Yes. 24 MS. BAKER: Your Honor, may I also approach? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6061 49mesat3 Sorrells - cross 1 BY MR. TIGAR: 2 Q. Now, I'm going to ask you to do the same thing we did 3 before, but this time with respect to Government Exhibit 1300. 4 Showing it to counsel. 5 1300, it's got Scott Kerns' initials on it, correct? 6 A. Correct. 7 Q. Put it in the drive. May I borrow your exhibit for just a 8 second. I'm going to ask you about this call, number 1034, all 9 right. That's the Ramsey Clark/Al-Shafi'i/Sattar/Yousry call. 10 Do you remember that one? 11 A. Yes. 12 Q. We talked about that, right? 13 A. Correct. 14 Q. I'm going to wait for this disk to load here. 15 MR. TIGAR: Your Honor, may I ask Ms. Shellow-Levine 16 to come up and push the buttons on this laptop to make this 17 disk load? 18 THE COURT: Yes. 19 MR. TIGAR: Thank you. And may I ask her to help me 20 while I examine from the lecturn. 21 THE COURT: Sure. 22 BY MR. TIGAR: 23 Q. Now, this is a call, the one we're going to be asking you 24 about, that's on your 1800C as in Charlie. 25 MR. TIGAR: May I show that to the witness and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6062 49mesat3 Sorrells - cross 1 jury, your Honor? 2 THE COURT: Yes. 3 Q. This is in evidence. And this is 1034, and that's 11/5/99, 4 correct? 5 A. I'm sorry -- correct. 6 Q. And the time, start time says 6:36 and 42 seconds p.m., 7 correct? 8 A. Correct. 9 MR. TIGAR: Now, I'm going to ask with 10 Ms. Shellow-Levine's help to open that audio file on Government 11 Exhibit 1300 in evidence and to open it in Notepad so that we 12 can read the SRI. 13 (Pause) 14 MR. TIGAR: May I approach, your Honor. 15 THE COURT: Yes. 16 MR. TIGAR: Your Honor, we're having a computer 17 difficulty here. 18 THE COURT: We can take a break. 19 MR. TIGAR: Could we take a five-minute recess, 20 because apparently the computer's not seeing the disk. 21 THE COURT: No problem. 22 Ladies and gentlemen, we'll take a ten-minute break. 23 Please remember my continuing instructions not to talk about 24 the case. 25 (Recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6063 49mesat3 Sorrells - cross 1 THE COURT: All right. Agent Sorrells is on the 2 stand. Mr. Fletcher? 3 THE DEPUTY CLERK: Agent Sorrells, you are reminded 4 you're still under oath. 5 THE COURT: Mr. Tigar, you may proceed. 6 MR. TIGAR: Thank you, your Honor. 7 BY MR. TIGAR: 8 Q. Agent Sorrells, while you were on the break, were you able 9 to get the computer to show you the contents of the audio file 10 that corresponds to the call, Government Exhibit 1034? 11 A. Yes. 12 Q. And were we able to -- were you able to look at the SRI or 13 signal related information on that call? 14 A. The top portion of that, yes. 15 Q. Yes, the top portion. And do you have in front of you what 16 I have marked as LS-48, which is an exhibit? 17 A. Yes, I have a copy. 18 Q. And did you compare that to the top SRI information that 19 was on that call that is in evidence as 1034? 20 A. Yes. 21 Q. And is LS48 identical to that signal related information? 22 A. Yes, it looks identical to me. 23 MR. TIGAR: We offer LS48, your Honor. 24 THE COURT: All right. No objection, LS48 received in 25 evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6064 49mesat3 Sorrells - cross 1 (Defendant's Exhibits LS48 received in evidence) 2 MR. TIGAR: Now may I show the witness 1800C, your 3 Honor. 4 THE COURT: Yes. 5 BY MR. TIGAR: 6 Q. This is 1800C, which is your chart, correct? 7 A. Yes, sir. 8 Q. And that chart shows a start time of 6:36:42 correct? 9 A. Correct. 10 Q. And the telephone bills show that there's a call at 6:24 to 11 Yousry, correct? 12 A. Correct. 13 Q. So that's a 12-minute difference, right? 14 A. Approximately. 15 Q. Now, in addition to that, you have various notations here 16 in this column that show outgoing calls, correct? 17 A. I'm sorry. Which column? 18 Q. This is one, two, three, four, five, column five. 19 A. OK. 20 Q. And it shows outgoing calls, correct? 21 A. Correct. 22 Q. And there is an outgoing call to Mr. Yousry, there's an 23 outgoing call to Mr. Clark, there's a three-way call and then 24 this outgoing call to the United Kingdom, correct? 25 A. Correct, except for the three-way call -- it's not just an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6065 49mesat3 Sorrells - cross 1 outgoing call. The first 6:35 p.m. call to 212-989-6613 that 2 shows -- the LUDs show the first call at 6:35 p.m. as being a 3 three-way call, not just an outgoing call. 4 Q. Thank you. 5 MR. TIGAR: Now, may I show the witness 1034X, excuse 6 me, which is not in evidence but was displayed to the jury in 7 connection with the playing of that call, your Honor. 8 THE COURT: All right. 9 Q. Now, on the material that was exhibited to the jury, you do 10 see outgoing, correct? 11 A. Correct. 12 Q. There's a call direction, and we see the time 18:36:42, 13 which is 24-hour military time for 6:36, correct? 14 A. Correct. 15 MR. TIGAR: May I show the witness LS48 in evidence, 16 your Honor. 17 THE COURT: Yes. 18 Q. This is LS48 we just received in evidence, right? 19 A. Correct. 20 Q. And this is the top SRI information on that call, correct? 21 A. Correct. 22 Q. And if we read down here session start, we can read 23 19991105 -- that's the year, month and date, correct? 24 A. Correct. 25 Q. Then 183642; hours, minutes, seconds, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6066 49mesat3 Sorrells - cross 1 A. Correct. 2 Q. And then it says call direction, incoming, right? 3 A. Correct. It's an I. 4 Q. Now, so your chart, 1800C, has outgoing; the telephone 5 records say outgoing; the exhibit shown to the jury says 6 outgoing; but the computer, the FBI machine, logged it as 7 incoming, is that right? 8 A. As listed here, correct. On -- 9 Q. And as listed here, when you say "here," you mean the CDR 10 furnished and introduced in evidence with Scott Kerns' initials 11 on it, right? 12 A. Correct. 13 Q. Now, how do you account, if you can, for the 12-minute 14 difference between -- 15 MR. TIGAR: May I show the witness 1800C, your Honor. 16 THE COURT: Yes. 17 Q. Between the call to Yousry and the call, that is, time 18 start that the FBI machine recorded? 19 A. How do I account for the difference? 20 Q. Or do you? Do you know what the explanation is for the 21 12-minute difference? 22 A. I tried to list and let the toll records or LUD records 23 speak from themselves. From reviewing the text of that call, 24 and as listed here, that Mr. Yousry is already on the phone 25 with Mr. Sattar, and then he and Mr. Sattar make an outgoing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6067 49mesat3 Sorrells - cross 1 call to Mr. Clark. 2 Q. Do you conclude that the FBI computer failed to pick up the 3 call for 12 minutes? 4 A. No, sir. 5 Q. Well -- go ahead. 6 A. All I'm basing that on is the call that's -- the calls that 7 are listed and have been submitted into evidence. This call, 8 this audio file, was listed as starting at 6:36:42 p.m. 9 Q. And the corresponding LUD record was 6:24, right? 10 A. The corresponding LUD record for the outgoing call to 11 Mr. Yousry was 6:24 p.m. 12 Q. Now, at that time the FBI had a Court authorized wiretap on 13 Mr. Sattar's phone, correct? 14 A. Correct. 15 Q. And that -- if it worked right, that was supposed to pick 16 up and start recording as soon as the telephone was off the 17 hook, right? 18 A. That's my understanding. 19 Q. And beyond what you've said and based only on the records 20 that you have before you, do you have an explanation for the 21 12-minute gap between 6:24 and 6:36? 22 A. Simply that from the text of this verbatim text, 1034X, 23 Mr. Yousry notes -- Mr. Yousry was already on the phone. And 24 from listening to the actual audio portion of that, I believe 25 that is accurate from listening to the audio that Mr. Yousry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6068 49mesat3 Sorrells - cross 1 and Mr. Sattar were already on the phone. Then it notes the 2 outgoing call to Mr. Clark. 3 Q. You say "already on the phone"? 4 A. Correct. 5 Q. Is it your -- as you listen to the audio, does it sound 6 like they were already on the phone when this machine started 7 recording at 6:36, 12 minutes after this toll -- this LUD 8 record? 9 A. All I'm speaking to when I say listen to, I listened to the 10 audio file that was captured at 6:36:42. In that audio file 11 that I listened to, the first portion of that audio file, it's 12 my testimony from listening to it that Mr. Yousry and 13 Mr. Sattar were already on the phone at the time that this 14 audio file was captured. 15 Q. And that's all you're able to tell us based on your 16 knowledge, right? 17 A. From looking at these, the calls that I looked at, correct. 18 MR. TIGAR: May I have a moment, your Honor. 19 THE COURT: Yes. 20 MR. TIGAR: Thank you, Agent. I have no further 21 questions. 22 THE COURT: All right. 23 MR. TIGAR: May I retrieve the material from the 24 witness stand. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6069 49mesat3 Sorrells - cross 1 MS. BAKER: Your Honor, may the copies of Government 2 Exhibits 1800A through 1800U be redistributed to the members of 3 the jury. 4 THE COURT: Yes. Mr. Fletcher. 5 REDIRECT EXAMINATION 6 BY MS. BAKER: 7 Q. Agent Sorrells, let me begin by asking you about one of the 8 calls that Mr. Tigar was asking you about in his 9 cross-examination, and that is -- or I should say audio 10 files -- and that is the audio file, Government Exhibit 1016, 11 which is shown on the chart Government Exhibit 1800A. 12 A. I'm sorry. Government Exhibit 1016? 13 Q. I'm sorry, that's not the one I mean. I mean 1060, 1060. 14 Let me ask you about that one instead. 15 And that is on the page of the chart which is 16 Government Exhibit 1800E. 17 A. OK. 18 Q. Now, as reflected in the fourth column of the chart, based 19 on your review of the transcript in evidence, Government 20 Exhibit 1060X, what did you conclude was the direction of the 21 call between Mustafa Hamza and Mr. Sattar? 22 A. From reviewing the records -- 23 Q. I'm sorry. I mean between -- it begins with a call via 24 call waiting, correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6070 49mesat3 Sorrells - redirect 1 Q. Is that a person other than Mustafa Hamza? 2 A. Yes. 3 Q. I'm asking you -- I mean to be asking you about that part 4 of it, the call via call waiting. 5 Do you know what your basis was for concluding that 6 that was an incoming call via call waiting? 7 A. Yes. I think if you -- that particular call -- I didn't 8 listen to the call, but from looking at the text, I believe it 9 notes that they received an incoming call via call waiting. So 10 that has to be an incoming call. 11 MS. BAKER: Your Honor, may I show the first page of 12 Government Exhibit 1060X to the witness and the jury. 13 THE COURT: Yes. 14 Q. Showing you the transcript of the conversation, Government 15 Exhibit 1060X, does that refresh your recollection as to why 16 you concluded that that was an incoming call to Mr. Sattar? 17 A. Yes, it does. Mr. Sattar states that I have Yunis with me 18 on the line. 19 Q. And what about -- who speaks first in answering the phone? 20 A. Mr. Sattar does. 21 Q. What does he say in answering the phone? 22 A. Peace upon you. 23 Q. Now, from your experience as an investigator and as a user 24 of telephones yourself, who usually speaks first in a telephone 25 conversation? Is it the person who made the outgoing call or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6071 49mesat3 Sorrells - redirect 1 the person who received the incoming call? 2 A. Normally the person receiving the incoming call. 3 Q. Based on your review of all of the transcripts in evidence 4 in this case, was it common for Mr. Sattar and for other Arabic 5 speakers in receiving incoming calls to answer by saying peace 6 upon you, or peace be upon you? 7 A. Yes. 8 Q. And is that what they would say essentially in lieu of 9 hello? 10 A. Yes. 11 Q. Based on your review of Mr. Sattar's telephone records, did 12 he have caller ID? 13 A. I think that he did but I'm not positive. I'd have to look 14 back at the records. 15 Q. So when you were coming to an opinion as to the direction 16 of a call, did you take into consideration who spoke first and 17 what they said? 18 A. Yes. That was one of the factors. 19 Q. Now, in your assignment that Mr. Tigar gave you to carry 20 out over the lunch hour, how many different audio files did he 21 ask you to look at and compare the information in the 22 transcript with the information that you had set forth in the 23 fourth column on your charts? 24 A. He provided me with 23 calls or transcripts to review the X 25 transcripts. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6072 49mesat3 Sorrells - redirect 1 Q. And then near the end of his cross-examination, just now he 2 asked you about a 24th call, that being Government 3 Exhibit 1034, correct? 4 A. Correct. 5 Q. So all together he discussed with you the directions of the 6 total of 24 audio files, is that right? 7 A. Correct. 8 Q. When you reviewed those audio files over the lunch hour, or 9 the transcripts of those audio files, did you keep track of how 10 many of them were indicated as call directions unknown in the 11 transcript based on what the recording system had recorded? 12 A. I did list what the recording system listed it as in the X 13 transcript, yes. 14 Q. Would you count for us now how many of the 24 total that 15 Mr. Tigar has asked you about, for how many of them did the 16 system simply state the call direction was unknown? 17 A. According to my list I have 15. 18 THE COURT: Excuse me? 19 MR. TIGAR: Foundation. The system? 20 THE COURT: Rephrase the question. 21 Q. For how many of them did the verbatim transcript in 22 evidence state that the call direction was unknown? 23 A. According to my count over lunch 15. 24 Q. So it's 15 out of 24? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6073 49mesat3 Sorrells - redirect 1 Q. So there are only nine as to which there was some 2 discrepancy between what the transcript says as far as call 3 direction and what you concluded based on content to the 4 conversation, correct? 5 MR. TIGAR: Object to leading. 6 THE COURT: Sustained. 7 Q. OK. What's 24 minus 15? 8 A. I believe that's nine. 9 Q. And so what does that mean about how many calls you 10 concluded there was a discrepancy between what the transcript 11 had or said about call direction and what you concluded about 12 call direction? 13 A. Approximately nine calls were as listed where one or the 14 other says incoming and I concluded it's outgoing, or vice 15 versa. That's the total number of that. 16 Q. Agent Sorrells, do you know how many audio files in total 17 have been introduced into evidence in this case? 18 A. I think on the chart that I -- this chart that I prepared, 19 I think there are approximately 224. 20 Q. Now, let me ask you about the audio file in evidence as 21 Government Exhibit 1034 Mr. Tigar was asking you about at the 22 end of his cross-examination. 23 First of all, in your experience, based on reviewing 24 all of these transcripts and audio files, were there occasions 25 sometimes when a single call was recorded in more than one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6074 49mesat3 Sorrells - redirect 1 audio file? 2 A. Yes. 3 Q. Let me ask you to look back, please, at the page of the 4 chart in evidence as Government Exhibit 1800C. And look again, 5 please, at the row for the audio file Government Exhibit 1034. 6 A. OK. 7 Q. Mr. Tigar was asking you about the time difference between 8 the start time of this particular audio file and the time of 9 the outgoing call to Mr. Yousry that was reflected in 10 Mr. Sattar's telephone records. 11 A. Yes. 12 Q. What is your belief as to why there is a 12-minute 13 difference between when the outgoing call to Mr. Yousry began 14 as reflected in the telephone records and when this audio file 15 started? 16 A. My belief from looking at the toll records and the text of 17 the recorded call and transcript is that Mr. Sattar made an 18 outgoing call to Mr. Yousry at 6:24 p.m. Mr. Yousry and 19 Mr. Sattar, from Mr. Sattar's phone, then made a three-way call 20 at 6:35 p.m. to the number 212-989-6613. Then at approximately 21 6:36:42, this audio is recorded and it -- with Mr. Yousry on 22 the line, Mr. Yousry and Mr. Sattar make an outgoing three-way 23 call to Mr. Clark, which is the three-way call at 6:35 p.m. to 24 212-475-3232. 25 Q. And so that second outgoing three-way call to Mr. Clark, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6075 49mesat3 Sorrells - redirect 1 that the first thing that you essentially hear in this 2 particular audio file? 3 A. That's what I believe, correct. 4 MS. BAKER: Your Honor, may we play the beginning 5 portion of Government Exhibit 1034. 6 THE COURT: Yes. 7 MS. BAKER: May we display --- 8 THE COURT: 1034 in evidence, right? 9 MS. BAKER: Yes, the audio file, 1034 in evidence. 10 And may we display the corresponding transcript as an 11 aid to the jury, Government Exhibit 1034X. 12 THE COURT: Yes. 13 MS. BAKER: And would you ask the jurors, please, to 14 put on their headphones. 15 THE COURT: All right. Ladies and gentlemen, put on 16 your headphones, dot facing forward. 17 (At this point, Government Exhibit 1034, in evidence, 18 was played to the jury) 19 MS. BAKER: Thank you, your Honor. That is sufficient 20 for this purpose. 21 THE COURT: Ladies and gentlemen, take the earphones 22 off and remember to turn them off. 23 BY MS. BAKER: 24 Q. Agent Sorrells, do you know one way or the other whether 25 the earlier 12 minutes of the outgoing call from Mr. Sattar to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6076 49mesat3 Sorrells - redirect 1 Mr. Yousry then as shown in Mr. Sattar's phone records was 2 recorded in one or more other audio files? 3 A. No, I don't. 4 Q. And just going back to some of the overall numbers of calls 5 here. You said there was a total of approximately how many? 6 A. Approximately 224. 7 Q. I'm sorry. I don't want the record to be unclear. 8 That's the number of audio files, which is greater 9 than the number of actual telephone calls as the participants 10 would have perceived them, correct? 11 A. Correct. 12 Q. So of that total number of -- 224, you said? 13 A. Yes. 14 Q. Other than the call directions for what we've now 15 established is nine, of them, where there is some discrepancy 16 between the call direction stated in the header of the 17 transcript versus your opinion of call direction based on the 18 content of the conversation, other than that discrepancy as to 19 call direction, did the telephone records and other evidence in 20 the case and the contents of the conversations themselves all 21 match up and corroborate each other? 22 A. Yes, they did. 23 Q. And did that include information like the times of calls as 24 reflected in the telephone records? 25 MR. TIGAR: Object to the form of the question. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6077 49mesat3 Sorrells - redirect 1 Information like. 2 THE COURT: All right. Rephrase. 3 Q. Was one type of information that matched the times of calls 4 that were reflected in the telephone records? 5 A. Yes, they did. 6 Q. Was another type of information that matched the telephone 7 numbers that were called to or -- withdrawn. Let me try that 8 one again. 9 Was another type of information that matched the 10 telephone number of the other telephone that was involved in 11 the conversation as reflected in the telephone records? 12 A. Yes. There were many times where the contact ID matched 13 the toll record of the number called. 14 Q. And were there other times when even if there wasn't 15 contact ID, where the identification of the parties to the 16 conversation matched whose telephone number was the other 17 number in the call based on the subscriber information or other 18 evidence? 19 A. Yes. 20 Q. And was some of the other information that matched the 21 durations of the calls as based on the telephone records? 22 A. Yes. 23 Q. And was some of the other information that matched the fact 24 that some of the calls were three-way calls, which was 25 reflected in the local records but not the long distance SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6078 49mesat3 Sorrells - redirect 1 records? 2 A. Yes. 3 MS. BAKER: Your Honor, may I have a minute. 4 THE COURT: Yes. 5 MS. BAKER: I have no further questions. 6 THE COURT: All right. Mr. Tigar, you may continue. 7 MR. TIGAR: Thank you, your Honor. 8 May I show the witness 1800C, your Honor. 9 THE COURT: Yes. 10 RECROSS EXAMINATION 11 BY MR. TIGAR: 12 Q. I'm going to put this back up here, 1800C in evidence. 13 This -- now you've talked about this call at 6:24, right? 14 A. Yes, sir. 15 Q. And you don't know whether there was a call at that time 16 that was recorded, right? 17 A. A call at 6:24? 18 Q. Yes. 19 A. No, I'm not aware of whether there was or not. 20 Q. But you chose to put that in your chart? 21 A. I'm sorry? 22 Q. You chose to put that in your chart? 23 A. The -- chose to put the LUD record -- 24 Q. 6:24 call -- 25 MS. BAKER: Your Honor, may the witness finish the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6079 49mesat3 Sorrells - recross 1 answer. 2 THE COURT: Yes. All right. Have you finished your 3 answer? 4 THE WITNESS: Yes. I did choose to put a call to 5 Mr. Yousry that was reflected in the LUDs, since Mr. Yousry was 6 listed as being on -- in the text of the telephone call. 7 Q. Well, you chose to put the 6:24 call in because Mr. Yousry 8 was on the 6:36 call, is that your testimony? 9 A. I'm sorry? 10 Q. Did you choose to put Mr. -- the 6:24 call in because 11 Mr. Yousry was on the 6:36 call? 12 A. Because the text of the telephone call for 1034X and 13 listening to the call convinced me that Mr. Yousry was 14 previously on the telephone line, that I felt like the LUD 15 record corroborated that he was -- there was a call and he was 16 already on the line. 17 Q. You reached the conclusion that Mr. Yousry was on a 18 telephone call that began at 6:24 with Mr. Sattar because he 19 was on a call at 6:36? Is that right? Is that your testimony? 20 A. From the -- 21 Q. Is that your testimony? 22 A. From the toll records for the outgoing calls, the toll 23 records showed me that there was an outgoing call from the 3513 24 number, Mr. Sattar's number, to Mr. Yousry. From listening to 25 and reviewing the transcript, it noted that Mr. Yousry was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6080 49mesat3 Sorrells - recross 1 already on the phone with Mr. Sattar at the time that the 2 6:36:42 call began. So I included it in the chart from the 3 local records. 4 Q. Did you go back to the FBI's records to see if there was a 5 recording of the 12 minutes between 6:24 and 6:36? 6 A. No, I did not. 7 Q. You testified in redirect examination that usually the 8 person who speaks first is the one to whom a call is made, 9 correct? 10 A. Correct. 11 MR. TIGAR: Now may I show the witness 1034X, your 12 Honor, the transcript that was shown to the jury as an aid when 13 the tape was playing. 14 THE COURT: Yes. 15 Q. Showing you 1034X, the first speaker here is Mr. Sattar, 16 yes? 17 A. Yes. 18 Q. And he says, are you with me, Pasha, yes? 19 A. Yes, he does. 20 Q. And then, yes, Professor, correct? 21 A. Correct. 22 Q. So he was the first speaker there, right? 23 A. He was. 24 Q. And yet it was your testimony that that was an outgoing 25 call, Mr. Sattar was the caller? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6081 49mesat3 Sorrells - recross 1 A. Yes. And I believe you can listen to that and the -- yes. 2 That's correct. 3 MR. TIGAR: May I show the witness 1800C, your Honor. 4 THE COURT: Yes. 5 Q. Now, your records also show two three-way calls from 6 Mr. Clark at 6:35, correct? 7 A. Yes. 8 Q. But there's only one Mr. Clark we're talking about here, 9 correct? 10 A. Yes, to my knowledge. 11 Q. And so do you have an explanation why you have two 12 three-way calls at the same time? 13 A. Yes. It is my belief that the -- with Mr. Yousry on the 14 line, when the audio was captured in this audio file, that 15 is -- it begins with the second three-way call at 6:35. Again, 16 you need to note that when the toll records list 6:35, if it 17 occurred anywhere in that minute, then it's listed as 6:35. 18 When the audio is captured, it's captured; for example, 19 6:36:42. 20 So the first three-way call could have been at 6:35:01 21 or it could have been at 6:35:59. Likewise, for the second 22 three-way call, it could have been at 6:35:01 or 6:35:59. 23 Q. Now, who's a subscriber to these two 212 numbers? 24 A. Mr. Clark. 25 Q. On 1034X in evidence is there one three-way call involving SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6082 49mesat3 Sorrells - recross 1 Mr. Clark or two three-way calls? 2 A. I'm sorry. On? 3 Q. 1034X in evidence -- 1034 in evidence. 4 A. For 1034 there is one outgoing three-way call to Mr. Clark. 5 Q. But two are listed here? 6 A. Yes, because two are listed on the local records. 7 Q. Do you have or did you find a recording of some other call 8 to Mr. Clark during this time that would substantiate these 9 toll records? 10 A. Did I find -- no, sir, I didn't search for another call. 11 MR. TIGAR: No further questions. 12 THE COURT: All right. 13 REDIRECT EXAMINATION 14 BY MS. BAKER: 15 Q. Agent Sorrells, do you still have 1800C in front of you? 16 A. Yes, I do. 17 Q. The two different three-way calls that are both listed as 18 occurring at 6:35 p.m. within the row of Government 19 Exhibit 1034, is it your belief from the telephone records that 20 those two calls were made simultaneously or one after another? 21 A. No, one after another. 22 Q. Do they appear one first and then another one second in the 23 telephone records? 24 A. Yes, they appear exactly as they are listed here, that -- 25 there was the 6:35 call to the 212-989-6613. My recollection SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6083 49mesat3 Sorrells - redirect 1 is that call was listed first. Then the three-way call at 2 6:35 p.m. to the 212-475-3232 is listed second. 3 Q. Agent Sorrells, have you ever called someone at one 4 telephone number and when you didn't reach them there, call 5 them at a different telephone number and reached them? 6 A. Yes, I have. 7 MS. BAKER: Nothing further. 8 THE COURT: All right. Ladies and gentlemen, you have 9 in front of you the exhibit that's been passed out, Government 10 Exhibit 1800A through 1800U. You have an opportunity now. The 11 exhibit is in evidence. Copies have been given to you. You 12 have the opportunity now to examine that exhibit as you sit in 13 the jury box, to go over the exhibit. And so I'll give you 14 that opportunity to go over the exhibit which has been 15 distributed to you. 16 In doing that, remember not to make any notes on the 17 exhibits and remember not to talk about it with anyone else. 18 This is just the opportunity for you to examine the exhibit, 19 which has been published for you in the same way that you would 20 have the opportunity to see it if the lawyers put the exhibit 21 up on the screens and showed it to you page by page by page. 22 So you can take this opportunity to look at the 23 exhibit. 24 MS. BAKER: Your Honor, while the jury is doing that, 25 may I step out to retrieve an exhibit? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6084 49mesat3 Sorrells - redirect 1 THE COURT: Yes, and I believe that Agent Sorrells can 2 step down. 3 (Witness excused) 4 THE COURT: Remember, ladies and gentlemen, please 5 don't make any notes on the exhibits themselves, just because 6 the exhibits are collected. 7 (Pause) 8 THE COURT: By the way, if any of you, while you're 9 looking at the exhibit, would like to get up individually to 10 stretch to make yourself more comfortable, you should feel free 11 to do that. I see -- so feel free. 12 (Pause) 13 THE COURT: And, ladies and gentlemen, people review 14 things at different rates of speed. And I have no desire to 15 either rush you or to require that you spend more time 16 reviewing something than you would otherwise do. You take 17 whatever time you want and when I see that all of you have 18 finished, we'll go on to something else. So it's completely up 19 to each of you individually. 20 (Pause) 21 THE COURT: And I'll know that you're done when all of 22 you look up to me. As I say, it's completely up to your own 23 time. 24 (Pause) 25 THE COURT: All right. Ladies and gentlemen, if you'd SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6085 49mesat3 Sorrells - redirect 1 pass the exhibits forward, Mr. Fletcher will collect them. And 2 then we will take our mid-afternoon break. Take your time, 3 ladies and gentlemen. I didn't mean to rush anyone who's not 4 ready. 5 All right. Ladies and gentlemen, we'll take our 6 break. Please remember my continuing instruction not to talk 7 about the case at all. Remember to keep an open mind. 8 (Recess) 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6086 49mesat3 Sorrells - redirect 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor -- 3 THE COURT: Yes. 4 MR. TIGAR: -- I request the Court on the jury's 5 return instruct them with respect to -- 6 THE COURT: Please have a seat. 7 MR. TIGAR: That with respect to a number of the calls 8 that are listed on Government 1800A through 1800U, the Court 9 has given the jury limiting instructions -- I count 34 such 10 calls -- and that when the jurors considered those calls, they 11 should keep in mind the Court's limiting instructions. 12 Second, I would request that the Court say that the 13 exhibits -- that the weight, if any, to be given to exhibits 14 1800A through 1800U is, as with all matters, for the jury. 15 MR. BARKOW: Your Honor, the government doesn't have 16 an objection to the first instruction; that is, to reiterate 17 that instruction applies to calls, but the second we think is 18 unnecessary. That's true with respect to every piece of 19 evidence. And the Court I think has and will instruct the jury 20 about weight being up to them, and there's no need to single 21 out this piece of evidence with an individual weight 22 instruction. 23 MR. TIGAR: The reason I asked for the instruction, 24 your Honor, is that it, with our consent, of course, has been 25 treated differently from any other exhibit. It is on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6087 49mesat3 Sorrells - redirect 1 borderline between demonstrative and, you know, in evidence. 2 It isn't 1006, for a lot of reasons. It's because of its 3 unusual character, your Honor, and the unusual method used to 4 publish it that we seek the additional instruction. 5 MR. BARKOW: Your Honor, I'm not sure because I wasn't 6 privy to the instructions, that might be an issue Ms. Baker 7 might have to discuss about the consent. 8 THE COURT: Why don't you talk about it with 9 Ms. Baker. 10 MR. BARKOW: All right. 11 THE COURT: And we'll take ten minutes. 12 MR. TIGAR: And, your Honor, additionally, just so we 13 don't waste time, we made a note to ask when the Lockheed 14 Martin Raytheon production will be finished, if Ms. Baker could 15 report on that. 16 THE COURT: OK. 17 See you shortly. 18 (Recess) 19 THE COURT: When we left, there was a request to 20 remind the jury that with respect to some of the telephone 21 recordings, I have given limiting instructions, and of course 22 those limiting instructions continue to apply. 23 And second, there was a request by the defendants for 24 an instruction that the weight to be accorded to the summary 25 charts, Government Exhibits 1800A through 1800U, as with all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6088 49mesat3 Sorrells - redirect 1 evidence, is for the jury to determine. And Mr. Barkow wanted 2 to consult with Ms. Baker. 3 MS. BAKER: Your Honor, the government believes 4 that that instruction is unnecessary and inappropriate. It's 5 just not appropriate to single out a particular piece of 6 evidence or series of pieces of evidence to give that 7 instruction. The Court will give that instruction at the end 8 of the trial as to all evidence generally, and the government 9 sees no reason -- it seems to us that the government -- sorry, 10 that the defendants are just seeking to undermine the 11 persuasiveness of this exhibit by selectively choosing it and 12 asking the Court to give that instruction at this time. 13 There is no reason to single out this evidence. 14 It's -- it's a series of summary charts that are fully in 15 evidence, and that's consistent with the law because all of the 16 content in the chart was itself already fully in evidence. And 17 so there's just nothing to warrant a special exception being 18 made in the case of these exhibits. 19 MR. TIGAR: The reason -- I initially stated the 20 reasons before for asking for an instruction. When a 21 government agent appears as a summary witness, as here, and 22 presents a summary chart, as here, the case law is this 23 evidence does raise special concerns because it is a form of 24 opinion and summary evidence and can be thought of in a sense 25 as a minitrial, minisummation. I'm not suggesting that this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6089 49mesat3 Sorrells - redirect 1 went that far, but that's the reason for asking for an 2 instruction and for believing that, as with other evidence, 3 such as the audio calls when they were first played or with 4 media material, that a special instruction is appropriate. And 5 I think the one we've asked for, I respectfully submit, is 6 narrow on the table. 7 MS. BAKER: Your Honor, I don't believe the examples 8 just cited by Mr. Tigar are analogous. The audio files got a 9 particular instruction because Mr. Tigar was able to cite a 10 Second Circuit case, which I don't remember the name of right 11 now, which specifically said that audio recordings should 12 receive a particular instruction. 13 And the media articles have gotten instructions 14 because your Honor has taken great pains to make clear to the 15 jury when things are not being admitted for the truth of the 16 matters asserted in them, but neither of those special concerns 17 apply with respect to these exhibits. 18 THE COURT: The request is a reasonable one and is a 19 straightforward request. A summary chart, while in evidence, 20 raises additional evidentiary issues for the jury, even when 21 admitted in evidence, because it is for the jury still to 22 determine, for example, whether the chart summary correctly 23 presents the information contained in the testimony and 24 exhibits on which it's based. 25 And so the only request that I've had is to instruct SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6090 49mesat3 Sorrells - redirect 1 the jury that the weight, as with all evidence, is for the jury 2 to determine. And that's a reasonable instruction, even with 3 the fact that these exhibits are, first, in evidence; and based 4 on other exhibits which are in evidence. And it certainly 5 doesn't undercut the admissibility of the exhibit or the 6 consideration of the exhibit by the jury. 7 So I will say that. 8 MR. TIGAR: And I take it the limiting instruction in 9 evidence is considered, too? 10 THE COURT: Yes. 11 MR. TIGAR: Thank you. 12 THE COURT: Ms. Baker didn't comment on that, but 13 Mr. Barkow said there was no problem with that before. 14 MS. BAKER: That's correct. 15 THE COURT: OK. Where do we go after this, just so I 16 know? 17 MR. BARKOW: Your Honor, we're going to return to 18 calls. 19 THE COURT: OK. 20 MR. BARKOW: So if Mr. Forkner can come to the witness 21 stand. 22 THE COURT: All right. 23 MS. BAKER: Your Honor, if I might be excused again. 24 THE COURT: Oh, yes. There was also a request as to 25 when the information with respect to Lockheed Martin and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6091 49mesat3 Sorrells - redirect 1 Raytheon will be concluded. 2 MS. BAKER: I don't know the answer to that question. 3 As my last letter indicated, the open issues were down to three 4 specific documents. And I have not had an opportunity since 5 coming to court this morning to see where things stand on those 6 three specific documents. I can let the Court know tomorrow 7 morning. 8 THE COURT: And all counsel. OK. 9 All right. Let's call in the jury. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6092 49mesat3 Sorrells - redirect 1 (In open court; jury present) 2 THE COURT: Please be seated, all. 3 Ladies and gentlemen, I remind you, because we've just 4 gone through exhibits relating to telephone recordings, that 5 when the underlying recordings were admitted in evidence, I 6 gave you limiting instructions with respect to some of those 7 telephone conversations. And of course you are to continue to 8 follow those instructions with respect to those conversations. 9 In addition, I remind you that the weight to be 10 accorded to the summary charts, exhibits, Government 11 Exhibits 1800A through 1800U, as with all evidence, is for you, 12 the jury, to determine. 13 All right. Mr. Dember. 14 MR. DEMBER: Your Honor, at this time may I ask 15 permission to read and display to the jury Government 16 Exhibit 1226X. This is an exhibit, your Honor, that also 17 requires a limiting instruction. 18 THE COURT: All right. Ladies and gentlemen, this 19 transcript is offered only as to Counts 2 and 3 of the 20 indictment, and it is received subject to connection against 21 Mr. Sattar. I've explained to you what "subject to connection" 22 means. 23 This transcript cannot be considered against 24 Ms. Stewart or Mr. Yousry for the truth of any of the matters 25 asserted in the transcript. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6093 49mesat3 Sorrells - redirect 1 All right. 2 MR. DEMBER: Your Honor, this is a telephone call on 3 February 7, 2001, at 12:33 p.m. between Ahmed Abdel Sattar -- 4 Mr. Forkner will read that part -- and Yassir Al-Sirri. I will 5 read that part. 6 May we proceed? 7 THE COURT: Yes. One moment. 8 Thank you. You may proceed. 9 (At this point, Government Exhibit 1226X, in evidence, 10 was displayed and read to the jury) 11 MR. DEMBER: Your Honor, at this time we ask 12 permission to read to the jury and display Government 13 Exhibit 1243X, which is a -- which does not require an 14 instruction, your Honor. It is a telephone call on February 7, 15 2001, at 2:43 p.m. between Abdel Sattar -- excuse me, Ahmed 16 Abdel Sattar and Yassir Al-Sirri. Mr. Forkner will read 17 Mr. Sattar's part and I'll read the part of Al-Sirri. 18 May we proceed? 19 THE COURT: Yes. 20 (At this point, Government Exhibit 1243X, in evidence, 21 was displayed and read to the jury) 22 MR. BARKOW: Your Honor, the next call is 25 pages 23 long. Given the time perhaps -- 24 THE COURT: All right. 25 MR. BARKOW: May we have just a moment, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6094 49mesat3 Sorrells - redirect 1 THE COURT: Sure. 2 MS. BAKER: Your Honor, in lieu of proceeding next to 3 a phone call, the government would like to recall Scott Kerns, 4 but Mr. Kerns is leaving town tomorrow morning. So we were 5 wondering if perhaps the jury might be asked to stay a few 6 minutes over so that we might be permitted to put Mr. Kerns on, 7 or Agent Kerns on before -- I expect that my direct of him 8 would take about 30 seconds. He's actually walking over here 9 right now. He's expected to arrive any second. 10 THE COURT: All right. It's not -- we still have some 11 time. Mr. Forkner may step down. 12 MR. TIGAR: Your Honor, may Ms. Shellow be excused to 13 retrieve his Jencks material and his past testimony so I'll be 14 able to cross-examine him? 15 THE COURT: Sure. Would you -- the parties like to 16 take a break for five minutes? 17 MS. BAKER: That would be fine with the government, 18 your Honor. And that way, when Agent Kerns arrives, we can 19 have him on the stand when the jury comes back into the room. 20 THE COURT: All right. Ladies and gentlemen, we'll 21 take a five-minute break. And if there is a problem in the 22 sense that someone has a commitment that prevents them from 23 staying a little longer, tell Mr. Fletcher right away, all 24 right? 25 Fine. Thank you. Remember not to talk about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6095 49mesat3 Sorrells - redirect 1 case, keep an open mind. 2 (In open court; jury not present) 3 MR. TIGAR: Your Honor, I didn't want to say anything 4 in the presence of the jury, but what's happened here is that a 5 member of the prosecution team came in, there was a discussion 6 and now all of a sudden, without notice to us, we get Agent 7 Kerns. And we're told that he's leaving town and I am 8 therefore in a position at 4:30 in the afternoon of 9 inconveniencing the jurors should I find that there are things 10 about which I may wish to cross-examine him. 11 I object to this mode of proceeding. I think it's 12 unfair and it does deprive me of the meaningful opportunity to 13 consider the kind of cross-examination that I would wish to do 14 in the case. And I understand the answer would be, well, let's 15 wait until he gets back to do the cross, but I also think 16 that's not fair. Whatever this is that suddenly arose, it can 17 surely wait until he returns. 18 MS. BAKER: Your Honor, I would like to proffer the 19 scope of Agent Kerns' testimony and what occasioned it and will 20 make clear that cross-examination will be limited, if it were 21 to exist at all. 22 THE COURT: OK. I should say -- it may be academic 23 because I really think that some jurors may have commitments. 24 It may not be true but, I mean, that's why I tried to break. 25 Go ahead. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6096 49mesat3 Sorrells - redirect 1 MS. BAKER: Very good. Of course if the jurors -- 2 THE COURT: And Agent Kerns, so far as I know, is not 3 here yet. 4 MR. MORVILLO: Agent Kerns is not here yet. 5 MS. BAKER: Yes. Your Honor, during Mr. Tigar's 6 cross-examination of Agent Sorrells about the telephone 7 analysis, Mr. Tigar suggested, the government would 8 respectfully submit, without a good faith basis that the first 9 twelve minutes of the outgoing telephone call between 10 Mr. Yousry and Mr. Sattar on November 5th of 1999, which call 11 began at 6:24 p.m. according to the telephone records, was not 12 recorded, as opposed to that it was not part of the particular 13 audio file in evidence. 14 The government has now confirmed that, in fact, the 15 prior portion of that outgoing call between Mr. Sattar and 16 Mr. Yousry was recorded on Mr. Sattar's telephone in a series 17 of audio files which were on a DVD that was disclosed to the 18 defense or various DVDs disclosed to the defense in discovery, 19 including on a .VOC file DVD that had been provided to 20 Ms. Stewart's lawyers. 21 And so the government seeks to recall Agent Kerns to 22 rebut the suggestion by Mr. Tigar that the recording system 23 wasn't working properly because it didn't record all of the 24 call. In fact, it did, just in five other preceding audio 25 files all in a row. So Agent Kerns was supposed to be putting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6097 49mesat3 Sorrells - redirect 1 those five other audio files on to a CD or DVD and bringing 2 them right over here so he could authenticate that DVD before 3 he left town. 4 The government submits that that would not open the 5 door to cross-examination about anything else, other than the 6 making of that CD or DVD, which Agent Kerns would undoubtedly 7 testify was done in exactly the same manner as his making of 8 all prior CDs and DVDs that he has authenticated at this trial. 9 And, of course, to better accommodate the schedules of 10 the jurors and not keep anyone late the government would be 11 happy to have a stipulation of what the CD or DVD is or a 12 stipulation of what Agent Kerns would testify to if the defense 13 were willing to do that. But the way this played out, I didn't 14 even have an opportunity to explore it. 15 MR. TIGAR: I will ignore the accusation of bad faith 16 which I, well, will ignore. 17 If Agent Kerns is to be called to testify that in the 18 discovery process the government reliably produced .VOC files, 19 then I respectfully suggest that the motion in limine so 20 lengthily argued would need to be reopened, because I have been 21 restrained from cross-examining about the manifest and repeated 22 unreliability of the discovery production process. And I 23 further suggest that whether that point is well taken or not 24 well taken is not one that ought to be resolved under the gun 25 in these circumstances. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6098 49mesat3 Sorrells - redirect 1 THE COURT: Well, it would -- I don't think that that 2 point is well taken with respect to the discovery process 3 because, as I understood the proposed direct, it was not that 4 materials were produced to the defense and the defense knew 5 full well that there was 12 minutes of other calls that were 6 actually recorded, but simply, here is a new DVD that records 7 the 12 minutes so that there is no dispute that the system 8 accurately records the 12 minutes. 9 So it's in response to the suggestion that there is a 10 12-minute gap. It's not that there was bad faith, and it's not 11 what the nature of the discovery was. It's very much like the 12 other recordings. 13 MS. BAKER: Your Honor -- 14 MR. TIGAR: Your Honor -- 15 MS. BAKER: I'm sorry. Frankly, the government is not 16 particularly interested, at least at this point in the trial, 17 in the content of those previous five segments of this call. 18 So, again, I don't know whether defense would consider 19 a stipulation, but if they would, the government would be 20 satisfied simply with a stipulation that five prior audio files 21 were intercepted on Mr. Sattar's telephone at the following 22 five times on November 5th of 1999. And I'm happy to recite 23 the times. 24 THE COURT: Well, I share the feeling that 25 Mr. Kerns -- Agent Kerns is still not here. It's 4:34 and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6099 49mesat3 Sorrells - redirect 1 defendants would have the right to ask for an adjournment after 2 the direct, so we're not going to complete it today. 3 MS. BAKER: All right. Agent Kerns is now here. 4 Mr. Barkow has just walked in with the disk. 5 MR. TIGAR: Your Honor, now we learn that the 12 -- 6 so-called 12 minutes is five segments. So we have, once again, 7 this problem of what the government claims to be a single call 8 is broken into five parts. It's Lockheed Martin redux, your 9 Honor. And that cross could take some time because the 10 suggestion that all was well during these 12 minutes does not 11 appear to be entirely well founded. 12 MS. BAKER: Your Honor, as Mr. Tigar knows from prior 13 examination of this witness, Agent Kerns was not a technical 14 agent at the time the Lockheed Martin system was in use. So 15 Agent Kerns is not going to be able to testify on any personal 16 knowledge why this one call was recorded in multiple audio 17 files. He would, of course, acknowledge the fact that it was, 18 which of course we would stipulate to. This whole thing, as I 19 said, could be obviated by stipulation. 20 THE COURT: Yes, but I'm not in a position to require 21 the parties to stipulate, and I'm also not in a position to say 22 that that can be done at this hour of the day. And you can 23 talk about whether you want Agent Kerns to begin the day 24 tomorrow or come over next week. I don't know what -- 25 MS. BAKER: Your Honor, Agent Kerns is leaving town at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6100 49mesat3 Sorrells - redirect 1 5:00 a.m. tomorrow, so we don't have the option of putting him 2 on the stand tomorrow morning. 3 THE COURT: Do you want -- you can talk about whether 4 there can be a stipulation, his plans can be changed with 5 respect to tomorrow or he can return next week for this 6 purpose. 7 Also -- well, there are other ways of attempting to 8 resolve it. But I -- I leave it to the parties. It really is 9 an imposition on the jury at this point. And I -- so we will 10 break for the day. 11 All right. 12 MS. BAKER: Your Honor, just so that the jury doesn't 13 think that the government didn't follow through on its 14 willingness or desire to call the witness, if you would advise 15 the jury something to the effect that because of an issue 16 raised or whatever, something -- 17 THE COURT: What I will tell the jury is because of 18 scheduling issues, I decided to break for the day. And I've 19 also taken into account my concern for the jurors' schedules so 20 that no one is disadvantaged in any way by the fact that we are 21 breaking now. 22 OK. Let's bring the jury in. 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6101 49mesat3 Sorrells - redirect 1 (In open court; jury present) 2 THE COURT: Please be seated, all. 3 Ladies and gentlemen, because of scheduling issues 4 we're going to break for the day. And that's my decision. And 5 in arriving at that judgment to break for the day now, I've 6 taken into account your schedules, and I didn't want to keep 7 you out of concern for your schedules. So I appreciate your 8 indulgence. 9 With that, we'll break for the day. Please, it's 10 really very important to continue to follow my instructions 11 very carefully. Please don't talk about this case at all among 12 yourselves or with anyone else when you go home this evening. 13 Don't look at, listen to, read anything to do with the case. 14 If you should see or hear something to -- that deals with the 15 case, simply turn away, simply ignore it. As I have repeatedly 16 told you, you are in the best position to hear and see 17 everything that is relevant to your consideration, so don't 18 look at or listen to anything to do with the case. 19 Always remember to keep an open mind until you've 20 heard all of the evidence, I've instructed you on the law, 21 you've gone to the jury room to begin your deliberations. 22 Fairness and justice requires that you do that. 23 With that have a very good evening. I look forward to 24 seeing you tomorrow. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6102 49mesat3 Sorrells - redirect 1 (In open court; jury not present) 2 THE COURT: You're welcome to discuss the issues 3 relating to the audio files that we just discussed and tell me 4 what the parties' views are. If the next item is -- I received 5 a letter today with respect to motion in limine by Ms. Stewart 6 with respect to certain matters relating to 9/11, so it's 7 Ms. Stewart's motion. 8 MR. TIGAR: Your Honor, we can address -- we're 9 prepared to address that, but that issue will not arise, I 10 don't think, until Ms. Stewart takes the stand. If your Honor 11 would prefer, I'll address it now, but we have these newspaper 12 articles that the government wanted to offer in its case. 13 THE COURT: I know, there are the newspaper articles 14 and there are also the issues of materials from the search of 15 Ms. Stewart's office, and I was going to get to those. 16 Let me ask the government, is that right, that this 17 issue doesn't come up until the defense case, if any? 18 MR. BARKOW: We think that that's probably correct, 19 your Honor, yes. We don't anticipate offering any particular 20 piece of evidence before we rest that's going to implicate this 21 motion at this point. And if that changes, we will bring it to 22 everyone's attention immediately. 23 THE COURT: All right. 24 MR. TIGAR: That being the case, your Honor, we would 25 prefer to defer it until the close of the government's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6103 49mesat3 Sorrells - redirect 1 evidence, because these sorts of relevancy determinations in 2 our respectful submission can best be made taking a look at all 3 that would have gone before. 4 THE COURT: All right. Does the government have any 5 problem with deferring that motion? 6 MR. BARKOW: We don't, your Honor. As I said, if for 7 whatever reason we change our calculus on this, we will advise 8 the Court and the parties immediately. 9 THE COURT: OK. All right. There were a series of 10 newspaper articles in connection with the government's case 11 that the parties wanted to address. I'm perfectly happy to 12 listen to the parties. 13 MR. TIGAR: If your Honor please, these are the 14 articles to which our letter of September 12th and Mr. Dember's 15 letter of September 13th were addressed. They are 545, 526, 16 529, 542 and 549. We have not objected to 534, if accompanied 17 by a limiting instruction that the promised connection evidence 18 is admitted. And of course there are the eponymous 5T exhibits 19 to the exhibits whose numbers I have read. 20 Most of our concerns are outlined in our letter of the 21 12th, but I wanted to say a few things that will relate also to 22 the newspaper articles in the Stewart search exhibits and focus 23 in that connection on the full paragraph at the middle of page 24 2 of Mr. Dember's September 13th letter. 25 He recites that the meeting -- the fact that media SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6104 49mesat3 Sorrells - redirect 1 sources broadcasted his statements to terrorists the world over 2 shows why the defendant's conduct was so dangerous. And he 3 writes that the media can be a tool for the broad dissemination 4 of terrorist group positions. Noting that the media plays an 5 essential, if unintentional, role in terrorist activities and 6 that, therefore, the publication of these statements is, quote, 7 part of the criminal conduct that's charged. 8 Respectfully, your Honor, the first problem is, of 9 course, that we have no evidence other than the evidence of one 10 translator who said that she reads some of these publications 11 that any of these publications reached an audience the world 12 over or anywhere where they would be likely to cause harm. The 13 likeliness of something -- likelihood is something I'll get to. 14 We have several Al-Hayat articles. If you Google 15 Al-Hayat, the second item in my Google search says it is an 16 Arabic language newspaper published in London. There are many 17 editions of Al-Hayat apparently published in different places, 18 and indeed in different languages. Apparently these 19 publications were in Arabic. 20 And there's no showing that these particular clippings 21 came from publications that appeared in places where anybody 22 who read them might be likely to do anything. That is a lack 23 of foundation. 24 But the more serious objection is this: To take the 25 position, as the government does, that exhortations published SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6105 49mesat3 Sorrells - redirect 1 in the media are an integral part of criminal conduct collides 2 fundamentally with our ideas about the media and free 3 expression; that is to say, the government's argument in this 4 paragraph first would provide a justification, if the media did 5 not act unintentionally but knew that the persons whose words 6 it was reporting were terrorists, could be criminally liable 7 for the consequences of publication. That's the impact of this 8 argument. 9 And also, the free speech issue could perhaps be 10 expressed this way: There's a great deal of law out there 11 before liability for publications. And one of the things that 12 we all understand, we start with this common ground, is that 13 there are inevitable social costs associated with free 14 expression. I am free to publish falsehood about public 15 figures if I don't know it's false. And the social cost and 16 individual cost of reputation harm is borne by the individual 17 in question and society as a whole. 18 I am free to demonstrate in the streets and exercise 19 First Amendment rights, even though the police might have to be 20 called out to protect me from others or to protect property 21 from things I might do. And the social cost of that is borne 22 broadly by society as a whole. That is the point of Professor 23 Anderson's article that we cited in Wake Forest, and one he's 24 followed up more recently in an article on tort liability for 25 speech. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6106 49mesat3 Sorrells - redirect 1 And until the media's publication, taking media 2 expression as -- because that's what we're talking about here, 3 is accompanied, A, with the intent to cause harm or the 4 knowledge that such harm is imminent and likely to occur; and 5 other under circumstances that make it factually likely that 6 such harm will occur, there can't be any media liability. 7 That's the teaching of Rice vs. Paladin, and we briefed that. 8 And also, your Honor, if I stand up and say I think 9 it's a good idea to kill enumerable people in some foreign 10 country, if I said that, no liability can attach to me for that 11 no matter how hateful people might regard my speech, unless I 12 can be shown to have uttered it under circumstances that are 13 likely to contribute to the imminent violence and unless I 14 utter the intent to cause that. 15 So the fact to attach significance to the utterances 16 of people who discuss the duty or propriety or necessity of 17 violence, to attach evidentiary significance to that, first of 18 all, establishes a rule of law that could chill the truthful 19 reporting of important public events. It can chill the 20 exercise of First Amendment rights by people who want to urge 21 violence under circumstances protected by Hess vs. Indiana and 22 Brandonberg, which people are perfectly free to do without 23 being subject to punishment. 24 And moreover, your Honor, in a world in which 25 government officials routinely justify wholesale violence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6107 49mesat3 Sorrells - redirect 1 including against civilians, under circumstances that violate 2 fundamental principles of international law, conduct that we 3 certainly would say should not be punished criminally, to say 4 that when people not connected with government have their 5 remarks published under the circumstances here is a form of 6 content discrimination. 7 And so, your Honor, we think that there is a First 8 Amendment issue here. And broadly speaking, that's it. We've 9 briefed it often, not with enormous acceptance from the Court 10 with respect to the dismissal of the charges. But now we 11 really are beyond that -- 12 THE COURT: Or from the Court of Appeals. 13 MR. TIGAR: Your Honor, the difference with the Court 14 of Appeals, because when I stood right in that lecturn at that 15 lecturn on the 9th of April of this year, your Honor reminded 16 me that with respect to Sheikh Abdel Rahman, the Court of 17 Appeals had cited but declined to apply Spock and had cited and 18 discussed these other principles. 19 But I can tell your Honor the distinction between that 20 case and this one. The heart, so far as Mr. Fitzgerald and 21 Mr. McCarthy and Ms. Stewart were concerned, of the case 22 against Sheikh Omar Abdel Rahman as made in that trial was not 23 the sermons; it was the conversations with this man Salem; that 24 is, there's no First Amendment content just standing in your 25 kitchen as Sheikh Abdel Rahman was accused of doing, or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6108 49mesat3 Sorrells - redirect 1 somebody's kitchen, and discussing whether or not it's a good 2 idea to blow up the UN or something else, maybe a military 3 target. See, that's the distinction between First Amendment 4 protected expression, broadcast at large to the world, and the 5 kind of conspiratorial conduct. 6 And it's precisely that distinction that troubles 7 writers. And I can't remember the footnote number, but in the 8 Spock decision itself, there's actually a footnote to which the 9 Court, drawing on Justice Harlan's analysis in Noto makes that 10 distinction. And that is the one upon which we rely. 11 Were these conversations recordings of people getting 12 together and doing this, of course we would have a very 13 different case. And that then leads me, your Honor, entirely 14 aside from the First Amendment to the Rule 401, 402, 403 15 analysis. I first asked the question what disputed fact 16 does -- do any of these articles make more likely than it would 17 otherwise be? They're not offered for their truth; that is to 18 say, the news analysis, particularly in 526, which is an 19 analytical article laden with analytical hearsay attributed to 20 an author who's on the recordings but about whom we know almost 21 nothing, signs of a new disagreement have appeared within the 22 Islamic group in Egypt. Hashim told Hayat that he was not 23 protected by Amazat and so forth and so on. 24 That article, far from having the relatively limited, 25 in the sense of what it tends to prove in this case, not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6109 49mesat3 Sorrells - redirect 1 limited in terms of constitutional questions, impact that the 2 government claims, for it is, in fact, more like an op-ed 3 piece; and far from tending to show that the words are 4 influential -- it's sort of a think piece about what happens 5 after this leader says this and that leader says that and so 6 on. Indeed, far from proving the government's case, it perhaps 7 illustrates that, what is it, John Stuart Mills' admonition, 8 more speech is the answer is the principle that we ought to 9 apply. 10 Not that we suggest it ought to be introduced in 11 evidence, because we don't think an abstract political debate 12 about what ought to happen in the Middle East is something that 13 ought to take place within the confines of this courtroom. 14 Simply not the place for it because of the fact that what 15 happened suggests that somehow people's protective views can be 16 the legitimate subject of government inquiry under the 17 circumstances here. 18 So, when we come there for this issue of relevance -- 19 and that's what our letter addresses, is the 401, 402 -- we 20 respectfully submit that the probative value here of these 21 materials, particularly when we subtract the factual content 22 and instruct the jurors that none of the facts alleged here are 23 offered for their truth, is greatly diminished to the vanishing 24 point of not almost to the vanishing point. 25 And that given the record in this case, who said what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6110 49mesat3 Sorrells - redirect 1 when, the who said what when, the telephone call after 2 telephone call after telephone call with these very speakers 3 talking not only about what they want to say today but what 4 they said yesterday and what they meant by it and how they 5 disagree with each other, given a record rich in detail with -- 6 I don't know, Ms. Baker ascertained hundreds of telephone 7 calls -- 8 THE COURT: Well, 224. 9 MR. TIGAR: 224, thank you. 10 THE COURT: Fewer number of telephone calls. 11 MR. TIGAR: Is it 224 calls? 12 THE COURT: 224 audio files. 13 MR. TIGAR: Thank you, your Honor. And fewer calls. 14 However many it is, we have sat here many days 15 listening to them. And in a record so rich in that sort of 16 detail, to want to publish to the jury newspaper articles 17 from -- not for their truth, from newspapers, the circulation 18 of which we do not know, addressed to markets of which we know 19 nothing because we don't know the particular editions that are 20 involved here, based on selections of what the readership in 21 that particular audience -- that particular region want to 22 read, seems to us to be improper. And for that reason we 23 object to these -- the admission into evidence of these 24 articles. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6111 49MMSAT4 1 MS. BAKER: Your Honor, as Mr. Tigar forthrightly 2 acknowledged near the end of his argument, the First Amendment 3 issue has been raised by Ms. Stewart several times previously 4 in this case without success and the government respectfully 5 submits that there is no reason for the Court to revisit that 6 analysis now. 7 The parties have both briefed the applicable case law. 8 The government has cited what it believes to be the pertinent 9 passages of the Rice v. Paladin decision and the Second Circuit 10 decision in Rahman and other applicable cases by the Supreme 11 Court which make clear that where there is criminal conduct 12 being committed with the requisite criminal intent, merely -- 13 the fact that some of the conduct is speech does not mean that 14 that speech is protected by the First Amendment and cannot be 15 used to prove that the criminal conduct is going on or that the 16 speech cannot itself constitute the criminal conduct. And the 17 applicable law on that has been briefed in great detail, most 18 recently in the motions to dismiss the superseding indictment. 19 If the Court has specific questions about that, I'm 20 happy to address them, but I don't want to reiterate what has 21 already been argued at great length. 22 As to the probativeness of this evidence, the 23 government outlined that in its recent correspondence about the 24 letters, that the news articles are probative of the 25 defendants' conduct in that they sought to disseminate and did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6112 49MMSAT4 1 disseminate the statements and the communications, and this is 2 essentially the center of the conduct at issue here, which was 3 that the defendants were disseminating Abdel Rahman's 4 statements to his associates and followers in the outside 5 world. So this is the defendant's very conduct which is at 6 issue in this case. But this evidence is also probative of 7 their state of mind and intent in that they intended the 8 statements that they were passing along from Abdel Rahman to 9 reach other people who presumably would be affected by them and 10 take action as a result of them. 11 So the probativeness of this evidence is quite clear, 12 as the government has already argued, and Mr. Tigar's initial 13 point that there is not any evidence in the record about the 14 distribution of the newspapers, if that claim is entitled to 15 consideration, the government's response is, that goes to 16 weight and not to admissibility. If Mr. Tigar wishes to argue 17 that there is no evidence that these newspapers are widely 18 distributed, so be it. 19 However, the government respectfully submits that all 20 of the telephone conversations, when considered together, 21 demonstrate that at least the defendants and their 22 coconspirators seem to believe that these newspapers are 23 distributed widely enough to get these messages out to the 24 intended audience. The defendants and their coconspirators are 25 always discussing what's in the different newspapers and what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6113 49MMSAT4 1 has been published and what has not been published and have you 2 seen this in Al-Hayat or have you seen that in Asharq Al-Awsat 3 and so on. Whether or not any party chooses any independent 4 evidence of the level of distribution of these newspapers, the 5 jury can already infer from the other evidence in the case that 6 these newspapers do achieve a sufficient distribution. 7 If nothing else, this is a way of the defendants and 8 their coconspirators communicating with each other things are 9 published in the newspapers and the defendants and their 10 immediate coconspirators like Taha know to keep up on what's 11 going on by reading what's in these various newspapers. Again, 12 that issue, if anything, goes only to weight, not to 13 admissibility, and the Court should find that these articles 14 are probative, that their probativeness outweighs any potential 15 prejudice, although it isn't really clear to me what prejudice 16 is being claimed here and that the First Amendment argument 17 should be rejected for the reasons that the Court has already 18 rejected it on more than one occasion. 19 MR. TIGAR: I'm sorry, your Honor. I think the only 20 newspaper person to whom Ms. Stewart spoke was Mr. Salaheddin 21 at Reuters. Indeed the question of weight and not 22 admissibility has been addressed. I think there was a time 23 whether Al-Hayat was available to somebody turned out to be a 24 step in the reasoning about the nonadmissibility of a newspaper 25 article where some hearsay was attributed to Mr. Taha. I may SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6114 49MMSAT4 1 not be remembering that correctly. I want to suggest, your 2 Honor, it isn't for us to argue later. It isn't for us to 3 argue about weight but rather the issues I raised were related 4 to conditional relevancy. 5 THE COURT: I'm prepared to rule on these articles. I 6 appreciate the arguments. 7 The government seeks to admit seven newspaper articles 8 from Arabic newspapers and Ms. Stewart objects. There are also 9 various newspaper articles that were seized in the course of 10 the search of Ms. Stewart's office that Ms. Stewart also 11 objects to. 12 As the Court has indicated before, each newspaper 13 article must be analyzed separately. While newspaper articles 14 are generally hearsay, if offered for their truth, as the Court 15 has instructed the jury, there are plain bases for 16 admissibility. In some cases, articles may be adopted 17 admissions. In some cases the fact of publication of the 18 articles may be relevant, not for the truth of the articles but 19 to show how alleged coconspirators coordinated their 20 activities. See Pan-Islamic Trade Corp. v. Exxon Corp., 632 21 F.2d 539, 556-57 (5th Cir. 1980). 22 It is also possible that the articles are not offered 23 for their truth but rather for an independent reason such as 24 the effect on the knowledge, intent and state of mind of the 25 reader, which is a permissible evidentiary purpose. See, for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6115 49MMSAT4 1 example, Coyne v. Taber Partners, 53 F.3d 454, 461, note 6 (1st 2 Cir. 1995); Burgess v. Premier Corp., 727 F.2d 826, 835 (9th 3 Cir. 1984; Ronegir v. McCall, 119 F.Supp.2d 407, 410 (S.D.N.Y. 4 2000). 5 Limiting instructions that the articles are not 6 offered for the truth of the matters asserted assures that the 7 articles are not used for an improper purpose. See Burgess, 8 727, F.2d at 835. 9 The Court also applies a 403 balancing analysis to 10 assure that the nonhearsay purposes for which the evidence is 11 offered is relevant and that the probative value of the 12 evidence for the nonhearsay purpose is not outweighed by the 13 danger of unfair prejudice resulting from any impermissible 14 hearsay use of the statement. See Ryan v. Miller, 303 F.3d, 15 231, 252-53 (2d Cir. 2002). No case cited by the defendant is 16 to the contrary of these propositions. There is also no First 17 Amendment bar to the admissibility of the exhibits. 18 The Court will now consider each of the seven 19 newspaper articles individually. First, Government Exhibit 20 525. This is a June 15, 2000 article in Asharq Al-Awsat 21 reporting on the statement on which Sheikh Omar Abdel Rahman 22 withdraws his support for the cease fire. The article is not 23 being offered for the truth of the statements in the article 24 but rather to show the dissemination of Sheikh Rahman's 25 withdrawal from the cease fire. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6116 49MMSAT4 1 The genesis of the article is shown in the recordings 2 reflected in Government Exhibits 1105X, 1106X, 1107X, 1109X, 3 and 1110X in Mr. Sattar's conversations with Mr. Al-Shafi'i. 4 The article is relevant to show how the withdrawal from the 5 cease fire was transmitted and Sattar's involvement in it. The 6 relevance is not outweighed by any danger of unfair prejudice 7 or danger that the jury will accept the article for its truth. 8 The genesis of the article is fully set out in the recordings 9 in evidence. Therefore, Government Exhibit 525 will be 10 admitted subject to the limiting instruction that it is a 11 newspaper article and it is not received for the truth of the 12 matters asserted in it. 13 Second, Government Exhibit 526 is an article by 14 Mohammed Salah in Al-Hayat on June 15, 2000 which also 15 discusses Sheikh Rahman's withdrawal from the cease fire. The 16 article reports on, among other things, an alleged interview 17 between Ms. Stewart and Al-Hayat "yesterday" which would be 18 June 14. But there is no independent evidence thus far of that 19 interview. The government argues that the fact of the wide 20 dissemination of the withdrawal for the cease fire is relevant 21 and that does have relevance. However, there is evidence of 22 the dissemination of the withdrawal from the cease fire in the 23 testimony of Mr. Salaheddin and his testimony about how he was 24 provided that information by Ms. Stewart and published the 25 information in Reuters. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6117 49MMSAT4 1 There is also evidence in the recordings and in the 2 Asharq Al-Awsat article which the Court will admit showing how 3 Mr. Sattar publicized the withdrawal. This particular article 4 contains substantial hearsay beyond the withdrawal from the 5 cease fire and, in addition, contains the hearsay 6 representations concerning how the Al-Hayat author obtained the 7 material from Ms. Stewart. 8 Thus, viewing the article as a whole, the relevance of 9 this additional article is outweighed by the danger of unfair 10 prejudice and the objection to the admissibility of this 11 article is sustained. 12 Third, Government Exhibit 529 is an article by 13 Mohammed Al-Shafi from the June 19, 2000 edition of Asharq 14 Al-Awsat. The government offers the article as coconspirator 15 statements by Mr. Taha because on Government Exhibit 1118X, a 16 June 18, 2000 conversation with Mr. Sattar, Taha said he would 17 have an interview. But that does not show that the statements 18 actually reported by Mr. Al-Shafi were the statements of 19 Mr. Taha. There is no evidence that Taha adopted the 20 statements in the article or verified them as his statements. 21 Therefore, there is an insufficient basis to admit the article 22 as the coconspirator statements claimed by the government on 23 which basis the government had sought admission. Therefore, 24 the objection to Government Exhibit 529 is sustained. 25 Fourth, Government Exhibit 534 is a June 23, 2000 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6118 49MMSAT4 1 article in Al-Hayat allegedly clarifying Sheikh Abdel Rahman's 2 withdrawal of support from the cease fire. There is no 3 objection to this article. Providing there is a limiting 4 instruction that it is not received for the truth of any of the 5 matters asserted in the article, that instruction will be given 6 and, therefore, the article will be admitted with the limiting 7 instruction. 8 Fifth, Government Exhibit 540. I have already ruled 9 on the admissibility of this exhibit. It is admissible subject 10 to a limiting instruction, and I have discussed this exhibit at 11 length. 12 Sixth, Government Exhibit 542. This is an October 9, 13 2000 issue of Al-Hayat that reports on the fatwah. Taha 14 specifically directs Mr. Sattar's attention to this article and 15 mentions it by page number in the recording -- mentions it by 16 page number and title indicating that Mr. Taha has, in fact, 17 read this article. 18 The article itself is limited to a description of the 19 fatwah and the government says that the article is not offered 20 for the truth of anything contained in the article. It is not 21 offered for the truth of the matters asserted in the article. 22 The article is relevant to show the dissemination of the 23 fatwah. It is relevant to the knowledge, intent and state of 24 mind of Taha, who has plainly read the article and directed 25 Mr. Sattar to it. The relevance of the article is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6119 49MMSAT4 1 outweighed by any danger of unfair prejudice. Therefore, the 2 objection to this article is Overruled. The article will be 3 admitted with the instruction that it is not received for any 4 of the matters asserted in the article. 5 Seventh, Government Exhibit 549. This is a January 6 10, 2001 article in Al-Hayat concerning Sheikh Abdel Rahman. 7 It cites a statement by Mr. Sattar and includes a claim that 8 prison authorities withheld insulin. The government asserts 9 that the article is not offered for the truth of the matters 10 asserted, but to show the dissemination of a false claim by 11 Mr. Sattar. 12 Much of the text of the article is in fact reflected 13 in Government Exhibit 1221X, a conversation between Mr. Sattar 14 and Mr. Al-Sirri on January 8, 2001. Subsequently, in 15 Government Exhibit 1223X, a conversation on January 8, 2001, 16 Mr. Sattar explains to Mr. Taha that the statement was sent to 17 newspapers and it will be in the newspapers the day after 18 tomorrow, when the Al-Hayat article appeared. 19 Comparing the Al-Hayat article to the transcript 20 reflects how the Al-Hayat article in fact publishes the 21 statement produced by Mr. Sattar and Mr. Al-Sirri except for 22 the fourth, fifth, and sixth paragraphs of the article, which 23 appear to be allegedly based on an interview with Mr. Sattar, 24 or on editorializing. 25 Thus, with the exception of those paragraphs, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6120 49MMSAT4 1 article is relevant to show the dissemination of Mr. Sattar's 2 statement, as well as the knowledge, intent, and state of mind 3 of Mr. Sattar and Mr. Al-Sirri. Given the evidence of how the 4 article was produced and the limiting instruction that it is 5 not received for the truth of any of the matters asserted in 6 the article, the relevance of the article is not outweighed by 7 any danger of unfair prejudice. Thus, the objection is 8 overruled except that paragraphs 4, 5, and 6 of the article 9 should be redacted and the article is received with the 10 limiting instruction that it is not received for the truth of 11 any of the statements in the article. 12 MR. TIGAR: Your Honor, in light of that, we request a 13 limiting instruction that 542 and 549 are received only as to 14 Counts 2 and 3. The 542 argument is based on our prior 15 submission, which the Court has cast doubt upon about the fake 16 fatwah. 549 is based on much the same argument. 17 Your Honor will recall with respect to 549 that 18 Ms. Stewart is heard talking to Mr. Sattar about whether the 19 Sheikh is refusing his insulin or whether in fact he is getting 20 it. And Mr. Sattar says, no, he is not really refusing it and 21 Ms. Stewart says, well, nobody outside will know that. And the 22 government has made much of that statement. But both with 23 respect to the fake fatwah and that conversation, Ms. Stewart 24 was prohibited by the government from talking to her client. 25 When the issue came up, is he taking his insulin, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6121 49MMSAT4 1 he being offered his insulin or not being offered it, is he 2 faking or not, she had, through Mr. Sattar, the Sheikh's wife's 3 version. She had Mr. Sattar's version of the Sheikh's wife's 4 version. But the one thing she didn't have and couldn't have 5 was the opportunity to talk to her client about what was really 6 happening there. And, therefore, she had to say that, look, 7 nobody knows what's going on. And I just think it is 8 fundamentally unfair for anything to come into evidence against 9 Ms. Stewart about events over which she had no meaningful 10 opportunity to control and no meaningful opportunity to consult 11 with her client because Mr. Fitzgerald had deprived her of the 12 opportunity. That is our position. 13 MS. BAKER: Your Honor, the government does not object 14 to such a limiting instruction with respect to Government 15 Exhibit 542. However, with respect to Government Exhibit 549, 16 the very telephone conversation that Mr. Tigar cites is the 17 reason why such a limiting instruction would be inappropriate. 18 In that conversation Mr. Sattar is essentially telling 19 Ms. Stewart in advance that even though we, the coconspirators, 20 know that the Sheikh is being offered his insulin but is 21 declining it, we are going to say that he is being denied it. 22 And Ms. Stewart effectively says, that's fine because no one 23 will know, or whatever the exact language is of the call. And 24 so she is essentially consenting to and thereby participating 25 in the fraudulent dissemination of the communication and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6122 49MMSAT4 1 thereby participating in the criminal conduct. And, therefore, 2 a limiting instruction that would prevent the jury from 3 considering the dissemination of that statement as against her, 4 along with the other defendants, would be inappropriate. 5 MR. RUHNKE: Just to weigh in on that one point on 6 Exhibit 549, whatever your Honor rules on, Mr. Tigar's 7 application, it clearly should be limited to not include 8 Mr. Yousry, that it should not be considered against him. He 9 has no part of this conversation. 10 MS. BAKER: Your Honor, Mr. Yousry possessed a copy of 11 this article and it is one of the exhibits that the government 12 will be offering that was seized in the search of Mr. Yousry's 13 residence. Moreover, I would have to read back about what your 14 Honor just said about the basis for admitting that one. But if 15 part of the basis for your Honor deeming it admissible is that 16 the very dissemination of the statement was part of the 17 criminal conduct, then it doesn't matter whether the one 18 particular defendant participated in it or didn't participate 19 in it, because the coconspirators are liable for each other's 20 conduct in that regard. 21 MR. PAUL: Your Honor, I think your Honor is 22 considering a limiting instruction on 549. Certainly I don't 23 see how it is relevant with regard to Counts 2 and 3. 24 MS. BAKER: Your Honor, the government disagrees with 25 that. There is evidence that has been introduced in this case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6123 49MMSAT4 1 that part of what prompts threats of violence from the Islamic 2 Group is the notion that Abdel Rahman might not be being well 3 treated in prison in the United States and that there will be 4 revenge by the Islamic Group if anything happens to him. 5 So with that backdrop, for the defendants to knowingly 6 and intentionally disseminate false information that suggests 7 that he is being deprived of proper medical care and, 8 therefore, might have his health or his life in danger, the 9 defendants are inviting threatening or violent response from 10 the Islamic Group, which has demonstrated that or the 11 coconspirators who have demonstrated that capacity in the past. 12 THE COURT: Mr. Paul's argument was, I believe, simply 13 that a limiting instruction with respect to 549 which said -- 14 told the jury you should consider this only with respect to 15 Counts 2 and 3 would not be a correct limiting instruction. 16 MR. TIGAR: Your Honor, he is right about that. I 17 withdraw the suggestion that I made. It does not logically 18 relate to Counts 2 and 3, in my view. And I then request it 19 not be admitted against Ms. Stewart. 20 THE COURT: But, you know, the evidence relevant to a 21 count of the indictment as to which a defendant is a defendant 22 and when the evidence goes to a period of time when the 23 defendant is alleged to be a member of the conspiracy and has 24 not withdrawn from the conspiracy and the conspiracy is alleged 25 to be continuing and activities are occurring in furtherance of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6124 49MMSAT4 1 the conspiracy and the defendant is alleged to have not 2 withdrawn and in fact to continue to take actions thereafter in 3 furtherance of that conspiracy, you would have to question how 4 that evidence would not be relevant to that defendant so that a 5 limiting instruction which says, you can't consider evidence of 6 the conspiracy during this period against one defendant who is 7 alleged to remain a member of the conspiracy not to have 8 withdrawn from the conspiracy would not appear to be a correct 9 instruction. 10 I understand the defendant's position that defendant 11 Stewart wants an instruction and defendant Yousry wants an 12 instruction that 549 cannot be considered against either 13 Stewart or Yousry. And the government, I take it, opposes that 14 limiting instruction. 15 MS. BAKER: Yes, your Honor. 16 THE COURT: I don't believe that that limiting 17 instruction is an appropriate limiting instruction, which 18 leaves 542. And the right now my limiting instruction would 19 be, the article is a newspaper article. It is not received for 20 the truth of any of the matters asserted in the article, and 21 the parties should consider whether they believe that any 22 further limiting instruction is appropriate with respect to 23 that. 24 MR. TIGAR: I thought I heard the government agree 25 that a limitation to Count 2 and 3 was appropriate on 542, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6125 49MMSAT4 1 Honor. That's what I think the transcript will reflect. 2 MS. BAKER: Yes, your Honor, I did say that the Court 3 would consent that a limiting instruction could be given on 4 542, that it is evidence on Counts 2 and 3. 5 MR. RUHNKE: Your Honor, can I say one thing about 549 6 as it applies to Mr. Yousry. He is not named in Counts 2 and 7 3, so it clearly can't be admissible against him if it is 8 admissible at all on Counts 2 and 3. 9 Count 1 charges a conspiracy basically to defeat the 10 SAMs by giving out information that is not authorized and is in 11 violation of the SAMs. The genesis of this particular piece of 12 evidence, as we have it on the record so far, is that 13 Mr. Sattar has a conversation with someone about a conversation 14 that the Sheikh had with his wife. It is then determined by 15 the people involved in that conversation that they will falsely 16 put out information, that the Sheikh is not taking his insulin 17 or is being deprived of his insulin, and that that's 18 basically -- and that is conveyed to other people. 19 But none of this involves Mr. Yousry. None of this 20 involves, obviously, a conspiracy to defeat the SAMs. It has 21 got nothing to do with releasing unauthorized information. It 22 has people not even involved with Mr. Yousry deliberately 23 disseminating, giving the government the benefit of all of this 24 false information. And I don't see for the life of me how it 25 can be admissible against Mr. Yousry, on what count and on what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6126 49MMSAT4 1 theory. 2 THE COURT: Government. 3 MS. BAKER: If your Honor wishes me to respond, I 4 will, although the government believes that the ruling that 5 your Honor has already made is correct, that this conduct is 6 conduct that is relevant to and within the scope of all of the 7 counts, essentially, and Mr. Yousry remains a coconspirator in 8 Count 1 and in the Count 4 material support conspiracy through 9 and past the date of this conduct and this article. And, 10 indeed, as I said a few minutes ago, he possessed a copy of 11 this article and was aware of its content and the fact that 12 that false statement had been disseminated before a point in 13 time when he continued to engage in other conduct in 14 furtherance of these conspiracies, most notably in the form of 15 the July 2001 prison visit. 16 THE COURT: Yes, I believe that no limit -- no further 17 limiting instruction is appropriate on 549. As I have said, 18 paragraphs 4, 5, and 6 should be redacted and a limiting 19 instruction that it is not received for the truth of any of the 20 matters asserted in the article will be given. 21 MS. BAKER: Your Honor, I just wanted to advise the 22 Court, we are preparing to present the Yousry search evidence 23 within this last portion of the government's case and so we 24 have now realized what we did not realize at the time that we 25 previously addressed the Court on these various news articles, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6127 49MMSAT4 1 the fact that Government Exhibits 526 and 529, which the Court 2 just sustained the defendants' objections to, were also found 3 in the search of Mr. Yousry's residence, copies of them with 4 handwritten notations that say, approved by Lynne Stewart, or 5 words to that effect. 6 And so because of that additional factual predicate 7 that the government believes supports the admissibility of 8 these articles, the government will, in a letter, ask the Court 9 to reconsider as to those two exhibits, but I wanted to make 10 the Court aware that we will do that. 11 Just to be clear, we are not specifically asking the 12 Court to reconsider the copies that were obtained from the 13 publisher, which is 526 and 529. Rather, it would be in the 14 form of asking the Court to admit the actual Yousry search 15 exhibits which will have different exhibit numbers. 16 THE COURT: I did rule on the articles as what I 17 called free-standing articles and on the bases that they were 18 being offered to me. It certainly would have been useful 19 before I went through the analysis of the articles proffered to 20 me as free-standing articles on various bases to know that they 21 were being offered for a different reason from the Yousry 22 search materials, much in the same way as when I ruled, I 23 believe, on 540. I was able to have before me the full record 24 of what it was, where it was found. 25 MS. BAKER: I know that the Court does not like SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6128 49MMSAT4 1 apologies, so I will simply say that the government regrets 2 having inconvenienced the Court in that way. We obviously have 3 a certain amount of difficulty -- 4 THE COURT: Please. It is not a question of 5 inconveniencing the Court. It is just not. That's what I do. 6 I rule. It is not a question of inconvenience. It is a 7 question of making sure that when I rule I rule on the most 8 complete record available. So this is all material which 9 should be known to the parties. 10 MS. BAKER: Which is why I rose this evening to alert 11 everyone to the fact that we will be taking this additional 12 step, and I can only say -- 13 THE COURT: The final point is, you knew about this 14 before -- in the course of the argument when the parties were 15 arguing over these exhibits, right? 16 MS. BAKER: Actually, your Honor -- 17 THE COURT: Someone did. 18 MS. BAKER: Someone did, your Honor. We have a 19 certain amount of difficulty because of the number of members 20 of the government trial team. Underlying that, we have a 21 certain amount of difficulty because of the very large volume 22 of Arabic language news articles and other documents that are 23 potential evidence in this case from a whole variety of 24 sources. And given that all of the members of the government 25 trial team don't speak Arabic and we are using our translator SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6129 49MMSAT4 1 resources to the best we can to try to make all this work as 2 smoothly as we can, but we do occasionally have these 3 breakdowns where it is only after the process has progressed to 4 a certain point that we realize that two different items from 5 two different sources are, in fact, identical to each other. 6 And this is a conclusion that we reached as to these two 7 articles only in these last couple of days of really organizing 8 and preparing the Yousry search evidence to be offered. 9 THE COURT: Right. But when the arguments were made 10 to me about these seven articles, I would have expected that 11 someone would say there is another issue with respect to those 12 articles rather than waiting for a ruling as to whether they 13 were admissible as free-standing articles before considering 14 them as exhibits obtained in the course of the Yousry search, 15 which may reflect on knowledge, intent, and state of mind of 16 Mr. Yousry from having the article. 17 MS. BAKER: Just so that the timing is clear, at the 18 time we wrote our letters to the Court arguing for the 19 admissibility of these articles, we had not realized that 20 Mr. Yousry had the matching copies. Mr. Morvillo, who is 21 handling the Yousry searches, may have begun over the last 22 couple of days to come to a belief as to which articles matched 23 which. But literally as the proceeding was going on just now, 24 I was advised of this for the first time. 25 So when I rose to address the Court earlier before the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6130 49MMSAT4 1 Court read its decision, I was not aware of that fact. And 2 because I now know it, obviously, the Court has indicated that 3 it will look at the issue in light of additional relevant 4 facts, but we will request this in a letter. And then if any 5 defendant wishes to respond, obviously, they would have an 6 opportunity to do so rather than just doing it on the spot 7 right now. 8 MR. TIGAR: Your Honor, with respect to the Stewart 9 search exhibits, I understand the legal theory of the Court's 10 ruling on the free-standing newspaper articles, but the 11 newspaper articles in the Stewart search exhibits raise 12 additional questions that we can, depending on the government's 13 proposed schedule, can address now or later. 14 Just to give the Court an idea, the government 15 introduced in evidence Government Exhibit 2604, which was some 16 sort of a Redweld or manila folder. Now, from that folder that 17 Agent Stumpf testified to, they seek to offer a number of 18 exhibits. The exhibits to which we have objected are in that 19 folder 2611, 2612, 2614, 2619, and 2620. 20 Mr. Habib has gone and looked at that folder in its 21 original form as it was seized from Ms. Stewart's office. And 22 what we find in there are some additional materials, a 23 Washington Post article: "Secret U.S. Evidence Entangles 24 Immigrants," and some other materials about a conditions 25 campaign and, also relevant to our discussion of Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6131 49MMSAT4 1 Exhibit 2622, some INS documents that relate to an asylum 2 hearing to which we raised an objection in our second letter. 3 We find a decision of an immigration judge and then a 4 reaffirmation of that decision holding that Mr. Nasser Ahmed, 5 who was the subject of that proceeding, was entitled to asylum 6 and rejecting the government's secret evidence as being 7 unreliable. 8 Thus, your Honor, with respect to the 2604 material 9 and 2622, that proffered exhibit, we have the fact that the 10 United States of America lost a proceeding as to which Attorney 11 General Reno declined to take an appeal, is bound by the 12 judgment and, yet, seeks to offer some of the most highly 13 prejudicial evidence that the government proffered in that 14 case. This raises a relevance question. What is the effect on 15 Ms. Stewart's state of mind of exhibits rejected by a court 16 offered by the government in a case that she won? It also 17 would raise then a Rule 106 issue with respect to our desire, 18 if the government is to be permitted to use these exhibits, to 19 place in evidence other materials found in the same Redweld 20 folder. 21 Then, your Honor, the government in folder 2606, which 22 Ms. Stumpf -- 23 THE COURT: I'm sorry. The INS documents were in 24 which folder? 25 MR. TIGAR: They were in 2604, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6132 49MMSAT4 1 All of these documents, your Honor, were in a single 2 box on the floor. So when I talk about what's in what Redweld 3 folder, there is a relationship among all of the folders in 4 that box. To a certain extent I'm referring to the folders for 5 convenience. 6 But in folder 2606 we find newspaper articles to which 7 we have objected, 2626, 2627, 2631. And these are -- for 8 instance, 2626 is Two Suspects in Massacre Are Killed, 9 Militants in Egypt Threatened Retaliation, so on. In that same 10 folder, your Honor, are three country reports on Torture in 11 Egypt by Amnesty International, six reports by the Lawyers 12 Committee on Human Rights, the Human Rights Watch Approach, an 13 Egyptian Organization of Human Rights Report, an article called 14 Death and Madness threatened 4,000 detainees in Fayyom Prison, 15 and so on. 16 Once again, your Honor, to select out of this some 17 newspaper articles in which newspapers report badness, 18 terrorism and so on, out of a case file that evidently relates 19 to Ms. Stewart's litigation of amnesty issues on behalf of 20 Mr. Nasser Ahmed, in a case in which an immigration judge 21 credited the evidence that Mr. Nasser Ahmed would be subject to 22 political persecution in his home country and discredited the 23 government's evidence, including evidence of terrorism, seems 24 to us unfair. 25 But, at any rate, there is the 106 issue. And when SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6133 49MMSAT4 1 Mr. Dember says that Government Exhibit 2622 is a series of 2 declassified documents -- skipping now -- in a case involving 3 some type of immigration dispute, it isn't some type of 4 immigration dispute. Mr. Nasser Ahmed was a paralegal during 5 Sheikh Abdel Rahman's trial, and he is mentioned in a lot of 6 these tapes -- excuse me -- telephone calls. I wanted to alert 7 the Court that the admissibility decision is, in a sense, 8 somewhat broader than that that we brief now that we have gone 9 back and tried to compare, which took us some time, each one of 10 these documents with the place for which it came. 11 I have prepared copies of the adjacent materials and I 12 know the Court is looking at the foot-high stack on counsel 13 table, but it is really not that much. These are multiple 14 copies. 15 THE COURT: What I was looking quizzically at was, the 16 arguments -- you're correct. The arguments that you're making 17 here are not the arguments that were made in the papers. And 18 to the extent that I would have been prepared to rule today on 19 the materials contained in the Stewart search, I would have 20 made that decision in the same way as the free-standing article 21 decision based on the materials submitted to me today, which 22 didn't include any of this and certainly didn't include those 23 arguments. 24 MR. TIGAR: I wanted to bring this to your Honor's 25 attention because I have a suggestion and that's why I asked SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6134 49MMSAT4 1 what the government's schedule was. We are happy to tender a 2 set of these materials that we found to government counsel and 3 give them an opportunity to see if they would consent to a 106 4 admissibility of these adjacent materials because, quite 5 frankly, if they were, then we will withdraw our objection to 6 the bulk of this material. There is some exceptions. Because 7 in 2622, your Honor, the actual hearing, there is a great deal 8 of redacted, secret material from those transcripts. And even 9 though the government wants a not-for-the-truth instruction, 10 that particular thing raises a Crawford question. And also in 11 2622 there are some Bin Laden references that we think are 12 gratuitous. And those we just don't think limiting 13 instructions are powerful enough to deal with. 14 So my suggestion is, your Honor, that through the 15 Court to the government, perhaps if we could tender this, they 16 could look at it, we might be able to come to some agreement 17 that would resolve the issues and narrow the dispute. Again, 18 they carried out seven big boxes, your Honor, and we had to go 19 through that and look at it after the government had -- 20 MR. DEMBER: Your Honor, I'm assuming the materials 21 Mr. Tigar is referring to are documents that cleared the wall 22 that had been set up to review these documents in her office. 23 MR. TIGAR: Yes. There are documents that were in the 24 government's office. I can't see how they were privileged, 25 your Honor. They are public documents. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6135 49MMSAT4 1 THE COURT: No. But Mr. Dember says it may be that 2 the -- it may be that the special master considered those 3 documents not to be ones that could be produced to the trial -- 4 MR. DEMBER: Your Honor, from Mr. Tigar's description 5 of those documents, they sound like documents that did clear 6 the wall, I did review numerous times, and, quite strenuously, 7 I disagree with Mr. Tigar's suggestion that they could possibly 8 be admissible under 106 with the government's proffer of the 9 materials from this search. They are completely different. 10 To suggest, your Honor, that newspaper articles that 11 were clearly clipped, apparently, by somebody associated with 12 Ms. Stewart, if not her, were the basis for a decision made by 13 some immigration judge is not supported by the other documents 14 in these files. The fact that a decision was made with respect 15 to an asylum application pertaining to a particular individual 16 doesn't translate into a rejection of the fact of the 17 truthfulness of Government Exhibit 2622, which is a series of 18 declassified documents which were turned over, which is 19 obviously an exhibit we are offering. 20 THE COURT: You say it doesn't detract from the truth. 21 The documents are not being offered for their truth. 22 MR. DEMBER: Correct. I am saying that Mr. Tigar 23 suggested that the immigration judge rejected the validity of 24 those documents, essentially rejecting the truthfulness of 25 them. I don't believe they were really the issue that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6136 49MMSAT4 1 immigration judge had to consider. And he suggested they were 2 rejected as not being valid or of any real value. And frankly 3 that's not the basis upon which the immigration judge made her 4 decision. I think it was a her. 5 In any event, your Honor, we would not agree to a Rule 6 106 ruling. I have reviewed those documents several times, at 7 least the ones that Mr. Tigar has described, and they are 8 separate and apart from the documents that we offer. Frankly, 9 I don't understand what Mr. Tigar is referring to when he 10 refers to Crawford and the government's proffered exhibits from 11 this search. 12 MR. TIGAR: Your Honor, I gather that the government 13 rejects the idea that they might think again. I acknowledge 14 that these exhibits are not offered for their truth, but for 15 the "very relevant, nonhearsay purpose of demonstrating 16 Stewart's state of mind, knowledge and intent." That's the 17 purpose. 18 Now, to take three or four sensational government 19 version of the world newspaper articles out of a file that 20 contains all of these documents that Ms. Stewart had 21 collected -- I didn't say they were introduced in evidence -- 22 and say that's her intent, members of the jury, that's what it 23 is admitted for, and to refuse and not to admit the adjacent 24 documents from the same Redweld folder seems to us to be 25 exactly the situation that Rule 106 was designed to deal with. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6137 49MMSAT4 1 MR. DEMBER: Your Honor, the reason why these 2 particular exhibits were selected from the documents in 3 Ms. Stewart's files, because like all the other documents 4 counsel is referring to, unlike the other exhibits, these 5 pertain to the Islamic Group, Omar Abdel Rahman, Mustafa Hamza 6 and other people related who have been mentioned in this case. 7 Those other articles have nothing to do with the Islamic Group 8 or with the other individuals whose names have been mentioned 9 as participants in the scenario of this case. That's why these 10 are relevant. Those other ones have nothing to do with, as I 11 mentioned, the Islamic Group itself, Omar Abdel Rahman, or any 12 other members of that group. That's why these are relevant. 13 Those other ones have nothing to do with that. That's why they 14 were selected. 15 MR. TIGAR: Your Honor, Stewart Bates 4354, Gama'a 16 al-Islamyia and so on, every single one of these documents that 17 I have offered refers to al-Gama'a Islamyia, the Islamic Group. 18 Some of them mention Omar Abdel Rahman. Every single one of 19 them is exactly relevant to the political situation in Egypt. 20 If Mr. Dember has says he read them a great deal and doesn't 21 agree to 106, we have a disagreement and I ask the Court to 22 resolve it. 23 MR. DEMBER: Your Honor, certainly those documents are 24 relevant and they are admissible at some point. They could be 25 offered in the defense case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6138 49MMSAT4 1 THE COURT: Before I rule, look at the documents and 2 the selection that the defendant made. If the parties can 3 reach some agreement, that's fine. If I have to decide it, 4 I'll decide it. 5 MR. TIGAR: We will first submit them to Mr. Dember, 6 give him a chance and, only if we can't reach agreement, submit 7 them to your Honor. 8 THE COURT: Yes. 9 MR. TIGAR: Thank you. 10 MR. RUHNKE: Mr. Yousry has to excuse himself. 11 THE COURT: I think we are done, unless there is 12 something else. If not, there is more than enough for 13 tomorrow, I take it, with the prison visit. 14 MR. DEMBER: Yes, your Honor. We have plenty to do 15 tomorrow. 16 THE COURT: See you all tomorrow morning at 9:15. 17 (Adjourned to Thursday, September 23, 2004, at 9:15 18 a.m.) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6139 1 INDEX OF EXAMINATION 2 Examination of: Page 3 STUART SLEPPIN 4 Direct By Ms. Baker . . . . . . . . . . . . 5975 5 Cross By Mr. Tigar . . . . . . . . . . . . . 5978 6 STEVEN SORRELLS 7 Direct By Ms. Baker . . . . . . . . . . . . 5978 8 Cross By Mr. Paul . . . . . . . . . . . . . 6021 9 Cross By Mr. Stern . . . . . . . . . . . . . 6025 10 Cross By Mr. Tigar . . . . . . . . . . . . . 6026 11 Redirect By Ms. Baker . . . . . . . . . . . 6069 12 Recross By Mr. Tigar . . . . . . . . . . . . 6078 13 Redirect By Ms. Baker . . . . . . . . . . . 6082 14 GOVERNMENT EXHIBITS 15 Exhibit No. Received 16 1803, 1807, 1807A1 and A2, 1807B, 1808 and 27597 17 1800A through 1800U . . . . . . . . . . . 5980 18 2707H . . . . . . . . . . . . . . . . . . 6001 19 2081S and 2081T . . . . . . . . . . . . . 6011 20 DEFENDANT EXHIBITS 21 Exhibit No. Received 22 LS48 . . . . . . . . . . . . . . . . . . 6064 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300